Terms and Conditions
- Overview. Vendor has developed a certain proprietary computer software program, named “Checker”, as more fully described in Schedule A hereto (collectively, as the same may be supplemented, modified, updated or enhanced from time to time, the “Application”), which are hosted on servers and made available to Vendor customers by means of the Internet (collectively, the “Service”). Customer desires to access and use the Service, and Vendor desires to provide the Service to Customer, subject to all of the terms and conditions hereof.
- Access. Vendor grants to Customer a non-exclusive, non-assignable and non-transferable right during the Term (as hereinafter defined) to allow access to, and use of, the Service only by the authorized users specified on Schedule B (the “Users”), in accordance with all of the terms and conditions set forth herein. The Application will be made available to Customer in executable object code form only accessed through the internet / offline modules.
- Customer Requirements. Customer represents, warrants and covenants that it shall:
- ensure that all of its Users comply with all of the terms and conditions hereof;
- not authorize any person or entity, other than the Users, to use or gain access to the Application or the Service and shall provide reasonable security devices to protect against unauthorized usage of or access thereto;
- not rent, lease, sublicense, distribute, transfer, copy or modify the Service or the Application or any component thereof;
- only use the Service for its internal business use and not in the operation of a service bureau or for the benefit of any other person or entity;
- not translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the source code from the object code made available hereunder;
- not adapt the Service or Application in any way or use it to create a derivative work;
- not remove, obscure, or alter Vendor’s proprietary notices, trademarks, or other proprietary rights notices affixed or contained in the Service or Application;
- not use the Service or the Application in any manner, or in connection with any content, data, hardware, software or other materials provided by or on behalf of Customer or any User (collectively, “Customer Materials”) that (A) infringes upon or violates any patent, copyright, trade secret, trademark, or other intellectual property right of any third party, (B) constitutes a defamation, libel, invasion of privacy, or violation of any right of publicity or other third-party right or is threatening, harassing or malicious, or (C) violates any applicable international, federal, state or local law, rule, legislation, regulation or ordinance;
- not use the Service or the Application for any illegal, obscene, offensive or immoral purpose; and
- use commercially reasonable efforts to ensure that all Customer Materials are free from viruses, worms, trojan horses and other malicious code.
- Fees. In consideration of Vendor’s provision of the Service hereunder, Customer shall pay the fees set forth on Schedule C hereto (the “Fees”) in accordance with the schedule set forth therein. accordance with all of the terms and conditions set forth herein. The Application will be made available to Customer in executable object code form only accessed through the internet / offline modules.
- Operating Environment. The Parties acknowledge that successful implementation and use of the Service depends upon the Customer’s provision of appropriate hardware and software as set forth in Schedule D hereto or such other hardware or software as Vendor may reasonably recommend from time to time (collectively, the “Operating Environment”). Customer shall be responsible for providing the Operating Environment at its own expense.
- Service Standards. Vendor shall use commercially reasonable efforts to cause the Service to be accessible to Customer, as specified herein, in an uninterrupted manner (with a minimum availability of 99% for any given calendar month), except for scheduled maintenance and required repairs, and except for any interruption due to causes beyond the reasonable control of, or not reasonably foreseeable by, Vendor, including, but not limited to, any Force Majeure Event (as hereinafter defined).
In the event of any interruption or failure of the Service, other than as permitted in accordance with this article 6, Customer shall promptly notify Vendor thereof, and Customer’s sole and exclusive liability therefore, shall be to receive a credit of €50 for each hour in excess of 24 hours during which the Service shall be continually unavailable other than as permitted in accordance herewith. Vendor shall use its best efforts to remedy any such interruption in service as quickly as possible. Any such interruption shall not be considered a breach of this Agreement by Vendor.
- Proprietary Rights.
- As between Customer and Vendor, the Application and the Service are and shall remain the sole and exclusive property of Vendor, including all applicable rights to patents, copyrights, trademarks, trade secrets or other proprietary or intellectual property rights inherent therein or appurtenant thereto. All rights not expressly granted to Customer herein are reserved to Vendor. All intellectual property rights in any materials provided as a part of the Application and/or the Services belong exclusively to Vendor. Customer understands and agrees that any software, documentation or training materials supplied by Vendor to the Customer contain confidential and proprietary information and data and are copyrighted, patented or trademarked works of Vendor, or otherwise constitute valuable trade secrets or intellectual property of Vendor.
- As between Customer and Vendor, the Customer Materials are and shall remain the sole and exclusive property of Customer, including all applicable rights to patents, copyrights, trademarks, trade secrets or other proprietary or intellectual property rights inherent therein or appurtenant thereto.
- Support; Training. Vendor shall provide telephone number(s) to enable communication with a service representative during Vendor’s normal business hours (8AM – 5PM GMT +2) basis to assist Customer in identifying, verifying and resolving problems with the Service. Setup will be provided by Vendor during the setup period of the Service for the Customer (limited to not more than 40 hours total over a period of two month). Additional (and in person) training can be requested based on Checker’s regular hourly fees plus expenses, if required. The support and training (where applicable) shall be provided in the English language. The place of rendering of the support and training services (where applicable) shall be at a location solely designated by Vendor.
- Additional Work. From time to time, Customer may request changes to or customizations of the Service or the Application and/or additional services (“Additional Work“) to be provided by Vendor subject to the terms and conditions hereof. All modifications or customizations of the Service or the Application and any other deliverables provided by Vendor in connection with any Additional Work shall be deemed a part of the Service hereunder and shall, as between the Parties, be the exclusive property of Vendor.
In the case where changes requested by Customer are integrated within the Application for usage by all other customers of Vendor, no charge will be assessed for the Additional Work. In the case where the Customer wishes to have a feature available exclusively for its own use a fee for this Additional Work will be assessed as described below. Customer shall submit all requests for Additional Work to Vendor in writing pursuant to a work order (each, a “Work Order”) substantially in the form attached as Schedule E hereto. Upon receipt of the proposed Work Order, Vendor shall, within a reasonable time, submit to Customer for its written acceptance a proposal for undertaking the applicable tasks, a price quote setting forth the fees applicable to the Work Order (which may, in the case of a modification of the Service, include an adjustment of the Fees charged pursuant to Article 4 hereof) and a timetable for performance of the tasks. If Customer accepts Vendor’s proposal to undertake the work specified in the Work Order pursuant thereto, then the Work Order, as supplemented or modified by Vendor’s proposal, shall, upon execution by both of the Parties, amend and become a part of this Agreement, and Vendor shall proceed to implement such changes or Additional Work in accordance therewith.
- Confidentiality. Customer and/or its authorized users shall not sell, transfer, publish, disclose, display or otherwise make available any portion of the executable code of the Application to others. Customer agrees to secure and protect the Application and the Service in a manner consistent with the maintenance of Vendor’s rights therein and to take appropriate action by instruction or agreement with its Users to satisfy its obligations hereunder. Customer shall use its best efforts to assist Vendor in identifying and preventing any unauthorized access, use, copying or disclosure of the Application or the Service, or any component thereof, or any of the algorithms or logic contained therein. Without limitation of the foregoing, Customer shall advise Vendor immediately in the event Customer learns or has reason to believe that any person to whom Customer has given access to the Service has violated or intends to violate the confidentiality of the executable code of the Application or the proprietary rights of Vendor, and Customer will, at Customer’s expense, cooperate with Vendor in seeking injunctive or other equitable relief in the name of Customer or Vendor against any such person. Customer agrees to maintain the confidentiality of the executable code of the Application using at least as great a degree of care as Customer uses to maintain the confidentiality of Customer’s own most confidential information (and in no event less than a reasonable degree of care). Customer acknowledges that the disclosure of any aspect of the executable code of the Application, including the documentation or any other confidential information referred to herein, or any information which, at law or equity ought to remain confidential, will immediately give rise to continuing irreparable injury to Vendor inadequately compensable in damages at law, and Vendor is entitled to seek and obtain immediate injunctive relief against the breach or threatened breach of any of the foregoing confidentiality undertakings, in addition to any other legal remedies which may be available. In addition, Vendor may immediately terminate this Agreement, including all license rights granted herein, in the event Customer breaches any of its confidentiality obligations regarding the Application or the Service. Customer hereby approves Vendor’s access to all of Customer’s data, which is stored on the Application, and/or any information that Vendor deems necessary to carry out the parties’ intentions in the within agreement, for the purpose of repair, or to carry out any support of any kind requested by Customer.
- Vendor Indemnity. Vendor shall indemnify, defend, and hold harmless Customer and its affiliates and the directors, officers, employees and agents of the foregoing with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that it is based upon any third party claim (an “Infringement Claim”) that the Service infringes any copyright, patent, trademark, trade secret or other intellectual property right of any third party; provided, however, that Vendor shall have no obligation pursuant to the foregoing indemnification provision to the extent that any claim is based on or related to (i) any use of the Service or Application in violation of this Agreement, (ii) any use of the Service or Application in conjunction with any third party product, data, hardware or software not provided by Vendor, or (iii) any Customer Material. If Customer’s use of the Service is enjoined by reason of an Infringement Claim, Vendor’s sole obligation shall be to either (i) procure the right for Customer to continue using the Service, (ii) replace or modify the components of the Service subject to the Infringement Claim with non-infringing components of substantially equivalent functionality, or (iii) if neither (i) nor (ii) are available on a commercially reasonable basis, refund to Customer a pro-rata portion, if any, of the Fees paid by Customer for access to the Service, at which time this Agreement shall terminate. The foregoing states the entire liability of Vendor with respect to any Infringement Claim, and Customer hereby expressly waives any other such liabilities.
- Customer Indemnity. Customer shall indemnify, defend, and hold harmless Vendor and its affiliates and the directors, officers, employees and agents of the foregoing with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that it is based upon any third party claim that, if true, would constitute a breach of any of the Customer’s representations, warranties, obligations, covenants or agreements hereunder.
- Indemnification Procedures. A Party seeking indemnification hereunder (an “Indemnified Party”) shall give the Party from whom indemnification is sought (the “Indemnifying Party”): (i) reasonably prompt notice of the relevant claim; provided, however, that failure to provide such notice shall not relieve the Indemnifying Party from its liability or obligation hereunder except to the extent of any material prejudice directly resulting from such failure; (ii) reasonable cooperation, at the Indemnifying Party’s expense, in the defense of such claim; and (iii) the right to control the defense and settlement of any such claim; provided, however, that the Indemnifying Party shall not, without the prior written approval of the Indemnified Party, settle or dispose of any claims in a manner that affects the Indemnified Party’s rights or interest. The Indemnified Party shall have the right to participate in the defense at its own expense.
- Limited Warranty.
- Customer acknowledges that it has reviewed, understands and accepts Vendor’s services. Vendor warrants that the Service will substantially conform in all material respects to Vendor’s presentations as set forth in Schedule A attached hereto and in this agreement, including, without limitation, any updates thereof and the design, functionality and performance specifications, when used in the Operating Environment in accordance with the terms and conditions hereof. In the event that the Service fails to perform in accordance with this warranty, Customer shall promptly inform Vendor in writing of such fact, and, as Customer’s sole and exclusive remedy Vendor shall either: (i) repair or replace the Service to correct any defects in performance without any additional charge to Customer, or (ii) in the event that such repair or replacement cannot be done within a reasonable time or cost, terminate the Agreement.
- Disclaimer. Except As Expressly Set Forth In Section 12(A) Hereof, Vendor Does Not Warrant, And Specifically Disclaims Any Representation, That The Application, The Service, The Documentation, Any Additional Work, Or Any Component Of Any Of The Foregoing, Will Meet Customer’s Requirements Or That Customer’s Use Of The Application Or The Service Will Be Uninterrupted Or Error-Free. Except As Expressly Set Forth In Section 12(A) Hereof, Vendor And Vendor’s Suppliers Make No Warranties, Express Or Implied, Including, But Not Limited To, Implied Warranties Of Merchantability, Fitness For A Particular Purpose And Title, In Connection With The Application, The Service, The Documentation, Any Additional Work Or Otherwise, And Any Such Warranties Are Hereby Disclaimed. The Application, The Service And The Documentation Are Provided “As Is”, With All Faults And Defects, Other Than As Expressly Set Forth In Section 12(A) Hereof.
- Limitation Of Liability. Vendor Shall Have No Liability To Customer With Respect To Its Obligations Under This Agreement Or Otherwise For Consequential, Exemplary, Special, Indirect, Incidental Or Punitive Damages, Or Any Loss Of Profit, Revenue, Data Or Goodwill, Whether Incurred Or Suffered As A Result Of Unavailability Of The Service Or Otherwise, Even If It Has Been Advised Of The Possibility Of Such Damages. In No Event Shall Vendor’s Aggregate Liability Hereunder For Any Cause In Any Calendar Year Arising Out Of Or Related To Vendor’s Performance Or Non-Performance Under This Agreement Or Otherwise Exceed The Amount Of The Fees Paid Hereunder To Vendor In The Calendar Year In Which The Direct Damages Are Incurred. This Limitation Applies To All Causes Of Action Or Claims In The Aggregate Including Without Limitation, Breach Of Contract, Breach Of Warranty, Negligence, Strict Liability, Misrepresentation And Other Torts. Customer has been provided reasonable notice of the foregoing limitations of liability, and recognizes that they are a material inducement to Vendor’s consent to execute and be bound by the provisions of this agreement.
- Term. The term of this Agreement shall commence on the date on which Vendor first makes the Service available to Customer and shall continue until the date immediately preceding the first (1st) anniversary thereof (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive one year periods (each, a “Renewal Term,” and together with the Initial Term, the “Term”) unless dully terminated by a party in the manner described in section 14 hereunder.
(a) Either Party may terminate this Agreement upon ninety (90) days written notice to the other Party if the other Party materially breaches any of the terms of either this Agreement; provided, however, that (i) this Agreement shall not terminate if the breaching Party shall have cured the breach within such period, (ii) the exercise of such right of termination shall not limit any other rights or remedies of the terminating Party at law, in equity or hereunder, (iii) the applicable period shall be thirty (30) days instead of ninety (90) days in the case of a breach by Customer of any of its obligations hereunder with respect to payment, proprietary rights or confidentiality. Following the end of the Initial Term, either Party may terminate this Agreement upon ninety (90) days written notice to the other Party, without cause .(b) Either Party may terminate this Agreement immediately if the other Party ceases to carry on its business; a receiver or similar officer is appointed for the other Party and is not discharged within thirty (30) days; the other Party becomes insolvent, admits in writing its inability to pay debts as they mature, is adjudicated bankrupt, or makes an assignment for the benefit of its creditors or another arrangement of similar import; or proceedings under bankruptcy or insolvency laws are commenced by or against the other Party and are not dismissed within (30) days.
- The termination of this Agreement shall automatically, and without further action by Vendor, terminate and extinguish Customer’s right to use the Service.
- Customer responsible to export data tables from application within 30 days from contract termination.