Digitsole Pro (B2B)
Intelligente Einlegesohlen (B2C)
"Access Credentials" means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual's identity and authorization to access and use the Services.
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than 50 % of the voting securities of a Person.
“App” means PROVIDER or DIGITSOLE’s mobile IOS or Android application as described in User Manual
"Available" means the Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Specifications
"Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential".
"Contract" means the order form, term and condition and any documentation related to the services hereby accepted by Customer.
“Cookies” means small files stored temporarily on the hard disk of the User’s computer by your browser and which are necessary for the use of the App. Cookies do not contain personal information and cannot be used to identify someone. A cookie contains a unique identifier, generated randomly and therefore anonymous. Some cookies expire at the end of the User’s visit, others remain. The information contained in the cookies is used to improve the App and Provider’s website.
"Customer" means the professional or the entity that signed the order form and accepted the hereby term of Use.
"Customer Data" means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data, or content by or through the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
"Customer Systems" means the Customer's information technology infrastructure, including computers, mobile, iPad, iPhone, tablets, smartphone, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
"Customer’s clients" means Customer’s clients or patients.
"Customer’s users" means Customer’s employees, representatives, consultants, contractors, who are authorized to use the Service and have been supplied user identifications and passwords by Customer or on Customer’s behalf by Provider.
“DPA” means Data Processing Agreement. It is a legally binding contract that states the rights and obligations of each party concerning the protection of personal data according to Privacy regulation .
"Documentation" means any manuals, instructions, or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
"Effective Date" has the meaning set forth in the preamble.
"Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
"Losses" means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Privacy regulation” means any applicable legislation and regulation to the Customer and Provider regarding Personal data. ( e.g : GDPR, CCPA, …)
"Process" means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. "Processing" and "Processed" have correlative meanings.
"Provider" means the company that provides the services pursuant to the contract as specified in the order form.
"Provider Materials" means the Services, Specifications, Documentation, and Provider Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials include Resultant Data and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Services, but do not include Customer Data.
"Provider Personnel" means all individuals involved in the performance of Services as employees, agents, or independent contractors of Provider or any Subcontractor.
"Provider’s Product or Product(s)" means Digitsole Pro insole connected with the service.
"Provider Systems" means the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Provider or through the use of third-party services.
"Representatives" means, with respect to a party, that party's and its Affiliates' employees, officers, directors.
"Resultant Data" means data and information related to Customer's use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
"SAAS or SaaS" is an acronym for “Software As A Service” and refers to our online website (https://app.digitsolepro.com) combined with its hosting and support services provided in this Agreement.
"Sensitive Personal Information" means as defined under LAW OR REGULATION, an individual's (i) government-issued identification number, including Social Security number, driver's license number, or state-issued identification number; (ii) financial account number, credit report information, or credit, debit, or other payment cardholder information, with or without any required security or access code, personal identification number, or password that permits access to the individual's financial account; or (iii) biometric, genetic, health, or health insurance data.
"Service" means the software that must be used with the Digitsole Pro device
"Service Credit" means credit due to Customer by Provider in case of Service Level Failure
"Service Level Failure" means a failure to make the Services Available as stated in Section 5.1.
"Service Period" means a calendar month during the Term
"Services" means the software-as-a-service offering described in the Sale order.
"Specifications" means the specifications for the Services set forth in the sale order.
"Territory" means the country states in the order form.
"Third-Party Materials" means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Provider.
"Third-Party or Third-Parties" means any Provider’s manufacturers, authors, developers, and service provider’s
2.1 Access and Use.
In consideration of the subscription fees paid by Customer for Service, the Provider of SaaS hereby grants the Customer a non-exclusive, non-transferable right to access and use of the Services connected to Digitsole Pro insoles and necessary for the use of them. This right of access and use is limited to the duration, number of users and options chosen and accepted by the Customer as set out in the sales order form. The total number of Authorized Users shall not exceed the number set forth in the order form, unless expressly agreed to in writing by the parties and subject to any appropriate adjustment to the Fees payable hereunder.
The Customer is expressly informed that the latest the version of the Term of Use is available at : https://compliance.digitsole.com/.
For the use of the SaaS the Customer shall accept the installation of App that is required to communicate with Digitsole Pro device.
Customer grants to Provider and its Third Parties the non-exclusive, non-transferable worldwide right to copy, store, record, transmit, display, view, print or otherwise use Customer Data solely to the extent necessary to provide the Service for the use of the Product.
Customer shall have an internal infrastructure and connectivity suitable to access the Services.
2.2 Documentation License.
Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term of access and use to Services
2.3 Service and System Control.
(a) Provider has and will retain sole control over the operation, provision, maintenance, and management of the Provider Materials; and
(b) Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems. He has also sole responsibility for all access to and use of product and services connected to it. This includes any information, instructions, data, results obtained from any use of the Services, and conclusions, decisions, or actions based on such use.
All Services are provided solely from and on Customer’s Systems.
2.4 Proprietary Rights.
Customer acknowledges and agrees that the Product, the Service and any necessary software used in connection with the Service and the Product contain proprietary and confidential information that may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
Except where expressly provided otherwise by Provider, rights to access and use of the Services, shall not be construed to confer any intellectual property rights. Customer agrees not to infringe any intellectual property rights of the Provider or its Third-Party, in any manner.
Provider reserves the right, in its sole discretion, to make any changes to the Services and Provider Materials that it deems necessary or useful to:
(a) maintain or enhance: (i) the quality or delivery of Provider's services to its customers; (ii) the competitive strength of or market for Provider's services; or (iii) the Services' cost efficiency or performance; or
(b) to comply with applicable Law.
Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such requested changes. No requested changes will be effective unless and until memorialized in a written change order signed by both parties.
In accordance with DPA, Customer agrees that Provider may in its discretion engage third parties to perform Services.
2.8 Suspension or Termination of Services.
Provider may, directly or indirectly, suspend, terminate, or otherwise deny Customer's, any Authorized User's, or any other Person's access to or use of all or any part of the Services without incurring any resulting obligation or liability, if:
(a) Provider receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its good faith and reasonable discretion, that:
(ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or
2.9 Customer’s data and personal data from Customer’s users and Customer’s clients
Regarding his/her clients or patients, Customer is acting as data responsible as defined in the applicable Privacy regulation that applies to Customer and Provider.
Customer shall inform his/her clients or patients the processing of their personal and sensible data is necessary for the purposes of preventive or occupational medicine, for medical diagnosis and those data are processed by or under the responsibility of a professional subject to the obligation of professional secrecy.
(a) processed by Provider and its Third Parties to the extent necessary to provide the Service and
(b) transferred outside of the country or any other jurisdiction where Customer and Customer’s Users are located.
In addition, Customer acknowledges and agrees that it is Customer’s obligation to inform Customer’s Users and Customer's patient of the processing of their Data and information and to ensure that such Users and patients have given any necessary consent to such processing as required by all applicable data protection legislation.
Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of the data and information transferred to Provider . Customer agrees that after termination of the subscription to SaaS, Provider shall only keep data transferred in an anonymized form.
(c) Customer is deemed to have read and agreed to Data Processing Agreement
2.10. Personal data
The Customer shall also get consent of their Clients that their personal data and sensible data are transmitted to PROVIDER to be processed and analyzed.
By browsing the App, the Customer accepts them. The Customer must give his consent to the use of certain cookies. Failing acceptance, the User is informed that certain features or pages may be refused.
3. Use Restrictions; Service Usage and Data Storage.
3.1 Use Restrictions.
(a) copy, modify, or create derivative works or improvements of the Services or Provider Materials.
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Provider Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service.
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Provider Materials, in whole or in part;
(d) bypass or breach any security device or protection used by the Services or Provider Materials or access or use the Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials.
(e) input, upload, transmit, or otherwise provide to or through the Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code.
(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Provider Systems, or Provider's provision of services to any third party, in whole or in part.
(g) remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Provider Materials, including any copy thereof.
(h) access or use the Services or Provider Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third, or that violates any applicable Law;
(i) access or use the Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Provider's detriment or commercial disadvantage; or
(j) access or use the Services or Provider Materials in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage.
3.2 Service Usage and Data Storage.
Due to storage and analysis of Customer’s data and data from Customer’s patients or clients and in compliance with Privacy regulation, the Customer is deemed to have read and accepted the DPA that applies at the current contractual relationship materialized by the subscription to the Service
3.3 Passwords, Access, and Notification.
Customer may designate up to the number of Users that corresponds to the number of permitted Users allowed by the option chosen and specify in the Order form. Customer will provide and assign unique password and usernames to each authorized User and/or each Customer’s clients. Customer acknowledges and agrees that Customer is prohibited from sharing passwords and or usernames with unauthorized users. Customer will be responsible for the confidentiality and use of passwords and usernames. Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, Client data and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer’s account. Provider will act as though any Electronic Communications it receives under Customer’s passwords, Username, and/or account number will have been sent by Customer. Customer agrees to notify Provider if Customer becomes aware of any loss or theft or unauthorized use of any of Customer’s passwords, usernames, and/or account number. The foregoing shall also apply to any sale Order Forms submitted by the Customer for further User licenses.
3.4 Transmission of Data.
Customer understands that the processing of data transmitted is fundamentally necessary to Customer’s use of the Service and the Product. Customer expressly consents to communication and Provider’s interception and storage of Data and/or Customer Data, and Customer's patients data. Customer acknowledges and understands that this will involve transmission over the internet, and over various networks, only part of which may be owned and/or operated by Provider. Customer acknowledges and understands that changes to Customer’s Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices.
Provider implements security best practices to protect data in transit, but cannot fully guarantee that data may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. Customer agrees that Provider is not responsible if Data communicated are lost, altered, intercepted or stored without authorizations during the transmission of any data whatsoever across networks not owned and/or operated by Provider.
4.1 Customer Systems and Cooperation.
4.2 Effect of Customer Failure or Delay.
4.3 Corrective Action and Notice.
If Customer becomes aware of any actual or threatened activity prohibited by Section 3.1, Customer shall, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.
5. Service Levels and Credits.
5.1 Service Levels.
Provider will use commercially reasonable efforts to make the Services Available at least ninety-nine and one half percent (99.5%) of the time as measured over the course of each Service Period, excluding unavailability as a result of any of the Exceptions described below :
(a) act or omission by Customer or any Authorized User not to access or use of the Services.
(b) Customer Failure;
(c) Issue with Customer's or its Authorized User's Internet connectivity;
(d) Force Majeure Event;
(f) Scheduled Downtime; or
(g) disabling, suspension, or termination of the Services pursuant to Section 2.8.
5.2 Service Level Failures and Remedies.
In the event of a Service Level Failure, Provider shall issue a credit to Customer in the amount of TEN percent (10 %) of the monthly Fees for the Services due for the Service Period the Service Level Failure occurred, provided Customer reports the Service Failure to Provider immediately on becoming aware of it and requests such Service Credit in writing within FIVE days of the Service Level Failure.
In no event will a Service Level Credit for any Service Period exceed ten percent of the total Fees that would be payable for that Service Period if no Service Level Failure had occurred.
5.3 Scheduled Downtime.
Provider will use commercially reasonable efforts to:
(a) schedule downtime for upgrading or routine maintenance at a time that impact the least our Customers; and
(b) give Customer at least 24 hours prior notice of all scheduled downtime of the Services.
Customer acknowledges that these scheduled downtimes can take several hours to complete (up to eight hours). Customer shall be apprised of software upgrades and or patch releases to the Service.
5.4 Modification to or Discontinuation of the Service.
Provider reserves the right at any time and from time to time to modify, temporarily or permanently, the Service (or any part thereof), provided such modification does not diminish the functionality of the Service. Notwithstanding the foregoing, except for scheduled down time, Provider shall use reasonable efforts to notify Customer prior to any such modification. Customer acknowledges that Provider reserves the right to discontinue offering the Service at the conclusion of Customer’s then current Term. Customer agrees that Provider will not be liable to Customer or any third party for any modification or discontinuance of the Service as described in this Section 9.
5.5 Service Support.
The Services include Provider's standard customer support services. Information regarding Service Support can be found on Provider’s website.
6. Data Backup.
In the event of any loss, destruction, damage, or corruption of Customer Data caused by the Provider Systems or Services, Provider will, as its sole obligation and liability and as Customer's sole remedy, use reasonable efforts to restore the Customer Data from Provider's then most current backup of such Customer Data in accordance to PROVIDER’s internal Backup Policy.
7.1 Information Security.
Provider will employ security measures in accordance with Provider's data privacy, that can be found on Provider's website and that were accepted by Customer.
7.2 Data Breach Procedures.
Provider maintains a data breach plan in accordance with the Privacy regulation and shall implement the procedures required under such data breach plan on the occurrence of a data breach (as defined in such plan).
7.3 Customer Control and Responsibility.
Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services ("Customer Systems"); (d) the security and use of Customer's and its Authorized Users' Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its Authorized Users' Access Credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
7.4 Access and Security.
Customer is responsible of the security of the access to his material and all Access Credentials to the Services and protect against any unauthorized access to or use of the Services. Customer shall control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.
8. Digitsole Pro SaaS account.
9.1 Confidential Information.
Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records:
(c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or
(d) the Receiving Party can demonstrate by written or other documentary records was independently developed by the Receiving Party without reference to or use of any Confidential Information.
Notwithstanding the foregoing, Customer acknowledges and agrees that Provider may disclose Customer’s Confidential Information solely to the extent necessary to provide services under this contractual relationship. Provider shall manage to keep such information confidential.
9.3 Protection of Confidential Information.
As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(b) except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who:
(ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 9.3; and
(iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9;
(c) safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its most sensitive information and in no event less than a reasonable degree of care; and
(d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and use its best efforts to prevent further unauthorized use or disclosure; and
(e) ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 9.
9.4 Compelled Disclosures.
If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall:
(a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.3; and
(b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
10. Intellectual Property Rights.
10.1 Provider Materials.
All right, title, and interest in and to the Provider's Product and Services, including all Intellectual Property Rights therein, are and will remain with Provider. Customer has no right, license, or authorization with respect to any of the Provider Materials except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 3.1. All other rights in and to the Provider's Products and Services are expressly reserved by Provider. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title, and interest in and to the Resultant Data transmitted, including all Intellectual Property Rights relating thereto.
10.2 Consent to Use Customer Data and Customer’s patient Data.
11.Representations and Warranties.
11.1 Mutual Representations and Warranties.
Each party represents and warrants to the other party that:
(a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization.
11.2 Additional Provider Representations, Warranties, and Covenants.
11.3 Additional Customer Representations, Warranties, and Covenants.
11.4 DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1 AND SECTION 11.2, ALL SERVICES AND PROVIDER MATERIALS ARE PROVIDED "AS IS." PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
12.1 Customer Indemnification.
(a) Third-Party Materials or Customer Data;
(b) access to or use of the Provider Materials in combination with any hardware, system, software, network, or other materials or service not provided by Provider or specified for Customer's use in the Documentation, unless otherwise expressly permitted by Provider in writing;
(c) modification of the Provider Materials other than: (i) by or on behalf of Provider; or (ii) with Provider's written approval in accordance with Provider's written specification;
(d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of Provider; or
(e) act, omission, or infringement implying Customer such as matter described in Section 12.2.
12.2 Provider Indemnification.
Customer shall indemnify, defend, and hold harmless Provider and its officers, directors, employees, successors, and assigns from and against any and all Losses incurred by resulting from any Action by a third party where such Losses arise out of or result from, or are alleged to arise out of or result from :
(b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Provider's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;
12.3 Indemnification Procedure.
Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 12.2, as the case may be.
If any of the Services or Provider Materials are, or in Provider's opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any Rights or laws, or if Customer's or any Authorized User's use of the Services or Provider Materials is enjoined or threatened to be enjoined, Provider may, at its option and sole cost and expense:
(a) modify or replace the Services and Provider Materials, in whole or in part, to seek to make the Services and Provider Materials non-infringing, while providing equivalent features and functionality; or
12.5 Sole Remedy.
13. Limitations of Liability.
13.1 EXCLUSION OF DAMAGES .
13.2 CAP ON MONETARY LIABILITY.
The exclusions and limitations in Section 13.1 and Section 13.2 do not apply to Provider's obligations under Section 12 or liability for Provider's gross negligence or wilful misconduct.
14.Term and Termination.
14.4 Effect of Termination or Expiration.
(a) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate.
(b) Provider shall apply DPA regarding Data transmitted by Customer, provided that, for clarity, Provider's obligations under DPA do not apply to any anonymized Data;
(c) Customer shall immediately cease all use of any Services and within FIVE days return to Provider, or at Provider's written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Provider's Confidential Information permanently erase all Provider's Confidential Information from all systems Customer directly or indirectly controls;
(d) Provider may disable all Customer and Authorized User access to the Services.
(e) if Customer terminates the contract pursuant to Section 14.3(b), Customer will not be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Provider will: (i) refund to Customer Fees paid in advance for Services that Provider has not performed as of the effective date of termination; and (ii) pay to Customer any unpaid Service Credits to which Customer is entitled.
14.5 Surviving Terms.
15.1 Customer’s Responsibilities.
15.2 Relationship of the Parties.
The relationship between the parties is that of independent contractors.
15.3 Public Announcements.
Neither party shall issue or use the other party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, without the prior written consent of the other party.
They will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email, in each case, with confirmation of transmission, if sent during the addressee's normal business hours, and on the next business day, if sent after the addressee's normal business hours; and (d) on the first day after the receiving date mailed by certified or registered mail, return receipt requested, postage prepaid.
The provider’s and customer’s addresses are the one specified on the order form.
15.5 Force Majeure.
Neither party will be liable to the other for any failure or delay in the performance of such party’s non-monetary obligations due a Force Majeure Event. That is to say an event beyond one party's control, that could not be reasonably foreseen at the time the contract was concluded and which effects cannot be avoid with appropriate measures, preventing the execution the contract.
15.6 No Third-Party Beneficiaries and Assignment
15.8 Governing Law; Submission to Jurisdiction.
15.9 Equitable Relief.
Any breach or threatened breach by Customer of any of its obligations under Section 9 or, in the case of Customer, Section 3.1, Section 4.3, or Section 7.3, would cause Provider irreparable harm for which monetary damages would not be an adequate remedy. In the event of such situation, Provider will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
Last updated on 24th January 2022