SUBSCRIPTION AGREEMENT US
Account: The Customer is provided with an Account. An Account is necessary to access and use the Products. The Account will be accessible through a set of credentials, consisting of keys and a username and password combination. Customer is responsible for maintaining the security and secrecy of the credentials. Customer will be responsible and liable for all activities using Customer’s credentials whether or not authorized by Customer. The Customer shall immediately notify the Supplier if the Customer becomes aware of any unauthorized use of the Customer’s Account or credentials.
Agreement: This Subscription Agreement, which regulates the conditions under which (i) the Customer buys a License (a subscription) to the Products from the Supplier and (ii) the Customer and the End Users access and use the Products. Changes in the Agreement are only valid if signed by the Supplier’s general manager or if published on The Supplier’s Official Website(s) or in the Director as a general updated version of this Agreement. A license (subscription) to the Products may also be bought by the Customer through a Dealer.
Customer: The legal entity that has signed the Quote and that is entering into the Agreement with the Supplier.
Customer Portal: The Customer will through a separate web page portal dedicated for the Customer be able to review the status of Customer’s total Licences.
Dealer: The company that is authorized by Supplier to act as an authorized reseller of Supplier’s Products. A Dealer may resell both Licenses on Products (on the conditions in this Agreement) and support services for Products (on the conditions in the Support Agreement). The Customer will pay the Dealer the prices agreed by the Dealer and the Customer for both the License and the applicable support services. The Dealer is only handling (i) the facilitation of the transaction on behalf of the Supplier, including the provision of the credentials (e.g., license key(s), username(s), and password(s)) for each Product, and (ii) if applicable, billing the Customer the applicable prices in cases where the Customer has purchased a License or support services from the Dealer. If the Customer purchased Licenses or support services from a company that ceases to be a Dealer, then the Supplier will either appoint a new Dealer or the Customer will purchase Licenses and support services directly from the Supplier. For clarity, the Supplier will not have any liability or obligations to the Customer under any contract or agreement between the Customer and any Dealer.
Director: The Supplier’s front-end application that is a part of the Product and available for download as part of the Product installer on The Suppliers Official Websites. The Director allows the Customer to log in to a Customer Account and access Licenses connected to this Account.
End User: The physical/natural person who has been authorized by the Customer to use the Products solely for the benefit of the Customer. The Customer defines and authorities which persons can have access to the Products as the Customer’s End Users. End Users are not required to be an employee of the Customer.
EULA: The End User License Agreement to the Product. The EULA will be based upon Appendix 1 and made available for the End User together with the Product. The EULA is available through the Director.
License: A subscription licence is (a) a license to install the Products on the number of computers listed in the Quote and for which Customer has paid the License Fee and to use the Products on such computers for the License Period solely for the benefit of the Customer, and (b) a license to install on such computers updates of the Products that the Supplier makes available to the Customer in the License Period. The Supplier may offer "floating" licences for Products which requires an internet connection and/or "node locked" licences for Products which can be used without an internet connection (after initial activation). A License for a Product and each renewal of a License will require the use of credentials that correspond to the License Period and the particular License purchased by the Customer.
License Fee: The fee that the Customer is obligated to pay in order to use the Products during the License Period and to give the End Users authorization to use the Products for the benefit of the Customer. The License Fee for the Products may be annual, quarterly or monthly. The Licensee Fee will be set forth in the Quote.
License Period: The time period between the date that the Customer receives the Product and the earlier of (i) the end of time period (e.g., annual, quarterly or monthly) for which the Customer has paid the License Fee as such time period is set forth in the Quote and (ii) the termination of this Agreement.
Party: The Supplier or the Customer.
Parties: The Supplier and the Customer.
Products: The object code version of the software product(s) developed by the Supplier that the Customer orders from the Supplier as specified in a Quote and that the Supplier supplies to the Customer, including all corrections, bug fixes, enhancements, updates, improvements and modifications to such software products that the Supplier makes available to the Customer. Products might be downloaded by the Customer from The Supplier’s Official Websites. The Products may be standalone software applications or features or functions of a Product that may be licensed (subscribed to) separately or as packages. A detailed description of each Product with license fees and license periods may be found in the Director, on the Customer Portal, or on The Supplier’s Official Website(s). Unless the context requires otherwise, the term “Product” also includes the documentation for the Product.
“Quote” means the Supplier’s quote that is signed by each Party and that identifies the Product(s), the License Period for each Product, the support service level if any and the applicable support term, and other terms and conditions applicable to the Products that are the subject of the quote. If there is an inconsistency between the terms and conditions in this Agreement and the terms and conditions in a Quote, the terms and conditions in the Quote will apply but only for that Quote and not any other Quote.
Service Agreement: The separate written agreement between Customer and Supplier and signed by Customer and Supplier regarding the agreed services that the Supplier shall deliver to the Customer with respect to the Products, which may include, but is not limited to, consultancy, customization, or development services.
Supplier: Pixotope Technologies AS with business registration no. 812 664 522, and registered office address Sommerogata 13-15, 0255 Oslo, Norway.
Support Agreement: Appendix 1 attached to this Agreement or a separate written support agreement between and signed by Customer and Supplier describing the agreed support services regarding the applicable Product(s) that the Supplier shall deliver to the Customer as provided in such separate support agreement.
The Suppliers Official Website: www.pixotope.com.
Third Party Products: Any products not developed by the Supplier, including without limitation hardware and other software products (other than the Products). The Director may contain links to Third Party Products.
2.1 Agreements between the Parties
The Supplier has developed Products that it chooses to license to the Customer as described in this Agreement.
The Supplier can also deliver certain consultancy assistance in order to customize the Products for the Customer. The specification of such services and customizations with delivery and other terms regarding such assistance shall be regulated between the Parties in a separate Service Agreement.
2.2. Director and Customer account
The Director provides an interface for the Customer to access the licensed Products. After the Customer has paid the License Fee for a specific Product, the Customer will be able to download such Product through the Director. The License Period will be shown through the Director (month, quarter or year).
The Customer will have its own Customer Account, and the Customer will through its Customer Account be able to see covered Products with License Periods and License Fees.
Third Party Products are not covered by this Agreement (the Customer must enter into a separate agreement with the developer or supplier of the Third Party Products).
3. Customer’s rights and obligations
Once the Customer has paid the License Fee for a Product, the Customer shall have, subject to the terms and conditions in this Agreement, a limited, non-exclusive, non-transferable, royalty- free and time-limited License for that Product in object code covered by the License Fee for the License Period, within the scope of this Agreement and without the right to sub-license.
The Customer will be responsible and liable for the acts and omissions of the End Users, including without limitation any acts or omissions that constitute a breach of this Agreement.
The Customer shall have no right of title or ownership to the Product, and no right to distribute, sub-license (whether or not through multiple tiers) or otherwise transfer the Product to any third party. The Customer shall have no right to re-brand or re-purpose the Product in any way. The Customer may not act as a rental house for Products.
The Customer will not (and will cause End Users not to) reverse engineer, decompile, modify or disassemble the Product or otherwise reduce the Product to human-perceivable form in whole or in part, except and only to the extent that such activity may not be restricted by and is expressly permitted by applicable mandatory laws.
Customer shall not, directly or indirectly, and Customer shall not permit any End User or third party to: (a) modify, translate, or create derivative works based on any element of the Products or any related documentation; (b) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Products; (c) use the Products for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer; (d) remove any proprietary notices from the Products or the documentation; (e) publish or disclose to third parties any evaluation of the Products without the Supplier's prior written consent; (f) use any Product for any purpose other than its intended purpose; (g) interfere with or disrupt the integrity or performance of the Products; or (h) attempt to gain unauthorized access to the Products or any related systems or networks.
The Customer shall ensure that the use of any Products for which the Customer has purchased a License, whether operated by its own staff or by freelance staff, shall be solely for the production of entertainment, media, educational, industrial, informational or for advertisement content only.
The Customer shall use the Products on computers that meet the minimum hardware and software requirements set forth in the documentation for the Products. The Customer is responsible and liable for all use of the Product, including the data the End Users enter into the Product, how the End Users use data and content generated from the use of the Product, any other results that the Customer or the End Users achieve with the Products and the use of such results.
Each Product is deemed accepted by the Customer on the date the Product was provided to or downloaded by the Customer. The Customer may not reject a Product. The foregoing shall not limit the warranties made by the Supplier in this Agreement or the Supplier’s obligation to provide the support described in this Agreement or in the Support Agreement.
4. Intellectual Property Rights
The Products, the content and any other information available through the Products is owned by the Supplier. The Supplier with its licensors, retain all copyright and all other intellectual property rights and other related rights to the Products, including without limitation the technology and databases behind the Product as well as the Product’s associated software. This also applies to any corrections, bug fixes, enhancements, updates, improvements or modifications thereto.
As between the Supplier and the Customer, all right, title and interest in all suggestions, ideas and feedback proposed by the Customer regarding the Products and related services, including without limitation all intellectual property rights in each of the foregoing, belong to and are retained solely by the Supplier or Supplier’s licensors and providers, as applicable. The Customer may (including through the End Users) periodically provide the Supplier with feedback, ideas and suggestions regarding the Customer’s use of the Products, the features or functionality of the Products, any bugs, errors or deficiencies that the Customer encounters regarding the operation and functionality of the Products and any ideas and suggestions that Customer may have regarding improvement or enhancement of the Products (collectively, “Feedback”). Customer hereby does and will irrevocably assign to the Supplier all Feedback and all intellectual property rights in the Feedback.
The Customer retains ownership of the Customer’s data and content, include the content created by the Customer using the Products. The Customer is responsible for keeping backups of all such data and Content the Customer or the End User create or enters into the Products. The Customer and its End Users are also responsible for their respective use of such data and content.
The Supplier has the right to use anonymous data (big data) to offer the Customer and its other customers better Products and other services such as good prognoses, optimization of Products and related services and analysis regarding the relevant subject matter, and to sell such enriched depersonalized data to third parties.
5. Provision of updates
The Customer shall have the right, under any and the same restrictions and obligations as follow from this Agreement, to receive those bug fixes, updates and upgrades to the Products released by the Supplier during the License Period that the Supplier makes generally available to its other customers free of charge, provided that the Customer has paid the applicable License Fee for such Products.
Any other support services regarding the Products from the Supplier is available as described in the Support Agreement between the Parties.
6.1. Prices and delivery terms
All fees and prices including the License Fee and support fees are specified exclusive of sales tax, use tax, value-added tax (VAT) and other relevant taxes, duties or such other similar and additional sums (collectively, “Taxes”) including, but without prejudice to the foregoing generality, the term Taxes includes without limitation purchase tax, excise tax, tax on sales, property or use tax; import or other duties, whether levied in respect of this Agreement, the Products, the use of a Product, or otherwise. The term Taxes shall not include income tax based on the Supplier’s income.
License Fees, support fees, and other fees and charges imposed under this Agreement shall not include Taxes except as otherwise provided herein. The Customer shall be responsible for all of such Taxes. If, however, the Supplier has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which the Customer is responsible under this Agreement, the Customer shall promptly pay the Taxes invoiced by the Supplier unless the Customer has furnished the Supplier with valid tax exemption documentation regarding such Taxes at the execution of this Agreement or at the execution of any subsequent instrument, order form or agreement ancillary to or referenced by this Agreement. The Customer shall comply with all applicable tax laws and regulations. The Customer hereby agrees to indemnify the Supplier for any Taxes and related costs paid or payable by the Supplier attributable to Taxes that would have been the Customer’s responsibility under this paragraph if invoiced to the Customer. The Customer shall promptly pay or reimburse the Supplier for all costs and damages related to any liability incurred by the Supplier as a result of the Customer’s non-compliance or delay with its responsibilities regarding Taxes. Customer’s obligation under this paragraph shall survive the termination or expiration of this Agreement.
The License Fee will be invoiced by the Supplier. Each such invoices shall itemizing each Product the Customer orders from the Supplier. The Supplier’s invoice or order confirmation will specify the applicable Product with License Period and License Fee. If Customer purchases a License or support services from a Dealer, the Dealer will invoice the Customer the applicable prices agreed by the Customer and the Dealer.
The Customer shall pay the set License Fee within ten (10) days of receipt of the invoice. Neither the Customer nor any End User will have any right to access or use the Product before the License Fee is paid. The terms in the offer or in the order confirmation from the Supplier will prevail in case it conflicts with this Section 6.2 (Invoicing).
Upon renewal of a License the then-current License Fee at the time of renewal will be applicable. Unless otherwise specifically agreed in writing, the Supplier may conduct annual price changes with effect from January 1st each year at a rate not exceeding four percent (4.0%) of the previous year’s License Fee.
The Supplier may update its License Fees from time to time with ten (10) days’ notice.
If the Dealer invoices the Customer the price for the License, then the Dealer will pay the Supplier the price agreed by the Supplier and the Dealer. If the Dealer does not timely pay amounts owed to the Supplier, then the Supplier may suspend the License and Customer’s right to use the Products even if the Customer has paid the Dealer. In such event, Customer’s sole recourse shall be against the Dealer.
6.3. Late payment
If the Customer after receiving an invoice issued in accordance with this Agreement fails to make the payment on or before the due date, the Supplier may submit a written notice demanding payment from Customer. If the Customer still fails to make the payment within five (5) days of receipt of the written notice, (i) the Customer shall be deemed in default of this Agreement, (ii) the Supplier’s contractual obligations shall be suspended until payment is made, (iii) the Supplier may suspend the Customer’s access to or use of the Products and (iv) the Supplier may terminate this Agreement. In addition, if the Supplier does not receive fees by the due date, then at the Supplier’s discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
6.4. Audit rights
To ensure the Customer’s compliance with the License and the proper payment of the License Fee, during the term of this Agreement and for a period of three (3) years thereafter, the Supplier shall have the right to conduct or have conducted an audit of the relevant information, books and records of the Customer. Within fifteen (15) business days after a written request from the Supplier, the Customer will provide to the Supplier or its audit firm, access to relevant information, books, records and personnel during regular business hours for purposes of such audit. In no event shall audits be made hereunder more frequently than once in every twelve (12) month period, unless an audit has revealed a material underpayment within the last twelve (12) months. The time period that is audited will not be subject to subsequent audits. The cost of such audit shall be borne by the Supplier unless the audit reveals (i) use of a Product beyond the scope of the License or (ii) an underpayment of more than five percent (5%) of the License Fee in which case the cost of the audit, the underpayment and the late fee shall be borne by the Customer.
The Supplier warrants to the Customer that each Product will, during the three (3) month period following the Customer’s initial receipt of the Product, substantially conform with the requirements in the documentation for the Product. Except for the foregoing warranty, the Products are licensed to the Customer “AS IS.” If the Customer experiences problems with the Products after the expiration of the warranty period, then Customer will be entitled the support services for which the Customer has paid the applicable support fee as such support services are specified in this Support Agreement.
The Customer will send written notice to the Supplier prior to the expiration of the warranty period of any alleged breach of the warranty and such notice will describe in reasonable detail the nature of the breach. In the event of a breach of the warranty, the Supplier will, at the Supplier election, either provide the Customer with a correction or will refund the License Fees paid by the Customer for the Product. In the event of such refund, the Customer will cease all use of the Product and will erase all copies of the Product from the Customer’s computers. THE FOREGOING WILL BE THE SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THE WARRANTY.
The Supplier does not warrant that the Product(s) are free from bugs, errors or defects or that the Supplier will be able to correct any bugs, errors or defects or when such corrections might be made available to the Customer. The Supplier will endeavour to rectify bugs, errors or defects in the Product as stipulated above or in the Support Agreement or the Service Agreement.
The Supplier does not warrant that the Product can be used for one or several specific purposes, or will function without problems with Third Party Products or the Customer’s systems. The Supplier does not warrant any results or suitability of results, from the use of the Product, based on the Customer’s input of data. The Supplier makes no representations or warranties regarding the support provided under the Support Agreement and all such support is provide “AS IS.”
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 7 (WARRANTY) THE SUPPLIER DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.
Both during the term of the Agreement and after the termination of the Agreement, the Customer shall refrain from using the Products in a way that is unlawful, unethical or may discredit, depreciate or otherwise be harmful to the Supplier’s reputation or goodwill, and shall also refrain from making statements in relation to the Supplier or the Products with similar effects, in so far as this restriction is permissible by applicable law. If the Supplier becomes aware that the Customer has breached this paragraph, the Supplier shall first give the Customer a notice with ten (10) days to cease and remedy the damages. If the Customer fails to do so in the given time, the Supplier may terminate this Agreement and revoke the Customer’s License with immediate effect.
In the event the Supplier becomes aware that the Customer has used the Product for gross human rights violations, the Supplier retains the right to terminate this Agreement and revoke the Customer’s License with immediate effect.
Subject to the terms and conditions in this Agreement, the Supplier shall, at its cost and expense, (a) defend, or at the Supplier’s option settle, any claim, suit, proceeding or action brought against the Customer by a third party (each a “Claim”) alleging that the Customer’s use of a Product as permitted under this Agreement infringes any of such third party’s patents issued as of the Effective Date or copyrights, or misappropriates any of such third party’s trade secrets (an “IP Claim”); and (b) pay (i) any final award of damages awarded by a court of competent jurisdiction and paid to the third party bringing the IP Claim, excluding enhanced damages and attorneys’ fees for willful infringement that is based on or is the result of the acts or knowledge of the Customer or its employees or agents, or (ii) any settlement amount agreed to in advance and in writing by the Supplier and paid to the third party bringing the IP Claim. The counsel employed by the Supplier to defend an IP Claim may also serve as counsel to the Supplier.
After notice of an IP Claim, or if the Supplier believes there is a basis for an IP Claim, the Supplier has the right, at the Supplier’s option and expense, to either (a) procure the right for the Customer to continue using the Product as provided in this Agreement, or (b) replace or modify the Product with a Product that has substantially similar functionality and that the Supplier believes would not be subject to the IP Claim. If the Supplier deems (a) or (b) not feasible or not commercially reasonable, the Supplier has the right to terminate this Agreement or all rights and licenses granted in this Agreement to the applicable Product. In the event of any such termination, the Supplier will refund to the Customer the unused portion of any License Fee paid by the Customer for the applicable Product. In addition, upon any such termination, the Customer shall cease the use of the applicable Product.
Notwithstanding anything to the contrary, the Supplier shall have no obligations or liability under this Section 8 (Indemnification) if an IP Claim is based upon, arises out of, or is related to any of the following: (a) the combination of the applicable Product with any product, software, solution, or service not provided by the Supplier to the Customer, (b) any modifications to the applicable Products made by the Supplier in compliance with specifications or instructions provided by the Customer, (c) use or reproduction of the applicable Product outside the scope of the License or in violation of any law or any restriction or limitation set forth in this Agreement, (d) any modification of the Product by any person or entity other than the Supplier, or (e) use of any version or release of the Product other than the most recent version or release made available to the Customer if the IP Claim would have been avoided by the use of the most recent version or release.
The Supplier’s obligations and liability under this Section with respect to any IP Claim is subject to and contingent upon each of the following: (a) the Customer notifying the Supplier in writing on a date that is the earlier of (i) ten (10) business days after the Customer’s receipt of written notice of the IP Claim (or a potential IP Claim) and tendering sole control of the defense of the IP Claim to the Supplier at the time of such notice or (ii) within thirty (30) days after the Customer has knowledge of any potential IP Claim, (b) the Supplier having full and sole control of the defense of the IP Claim and settlement negotiations for the IP Claim; provided, however, that the Customer is entitled to engage independent counsel, at the Customer’s expense, and that the Supplier has the right to withdraw from the defense of any IP Claim where there is no substantive disclosure regarding how the Product infringes, (c) the Customer furnishing to the Supplier copies of any and all documents pertaining to an IP Claim and the Customer keeping the Supplier informed in a timely manner as to the status of the same and providing the Supplier with copies of any additional documents pertaining to the IP Claim promptly after receipt thereof, (d) the Customer not settling an IP Claim without the prior written consent of the Supplier, and the Customer not commencing defense of the IP Claim (unless the Supplier fails to do so after receipt of the written notice specified above), and (e) the Customer providing all information and assistance reasonably requested by the Supplier related to the IP Claim or the defense or settlement of the IP Claim.
The Supplier has no obligation or liability under this Section with respect to any IP Claim for which the Customer first provides written notice to the Supplier more than one (1) year after the termination, expiration or non-renewal of the last License Period for the applicable Product.
THE TERMS IN THIS SECTION 8 (INDEMNIFICATION) SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND THE SUPPLIER’S SOLE AND EXCLUSIVE LIABILITY AND OBLIGATION WITH RESPECT TO THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8 (INDEMNIFICATION), THE SUPPLIER SHALL NOT HAVE ANY OBLIGATION TO DEFEND OR INDEMNIFY CUSTOMER FOR IP CLAIMS.
The Customer shall defend Supplier and its affiliates, licensors and their respective officers, directors and employees (the “Supplier Indemnified Parties”) from and against any and all third party Claims which arise out of or relate to: (a) the Customer’s use or alleged use of the Products other than as permitted under this Agreement or (b) any content created by the Customer using the Products, including any Claims that the content infringes or misappropriates any third party’s intellectual property rights. The Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such Claim. The Customer’s obligations under this paragraph are conditioned upon (x) the Customer being promptly notified in writing of any Claim under this paragraph, (y) the Customer having the sole and exclusive right to control the defense and settlement of the Claim, and (z) the Supplier providing all reasonable assistance (at the Customer’s expense and reasonable request) in the defense of such Claim. In no event shall the Supplier settle any such Claim without the Customer’s prior written approval. The Supplier may, at its own expense, engage separate counsel to advise the Supplier regarding a third- party Claim and to participate in the defense of the Claim, subject to the Customer’s right to control the defense and settlement of the Claim.
The Supplier can assign its rights and/or delegate its obligations under the Agreement in whole or in part to a third party. Upon such assignment of this Agreement by the Supplier, the Customer may be notified in writing by the Supplier. The Customer cannot assign rights or delegate its obligations under this Agreement without the Supplier’s prior written consent.
10. Duration and termination
This Agreement shall commence on the date the applicable Quote is signed by the last Party signing the Quote and shall terminate upon expiration of the License Periods for all Products, unless earlier terminated as provided in this Agreement.
Either Party may terminate this Agreement by written notice if the other Party is in material breach of this Agreement and such other party does not cure such breach within thirty (30) days after written notice of the breach is sent to such other Party, provided that the cure period will be ten (10) days in the case of the Customer’s failure to pay amounts owed to the Supplier.
Upon the expiration of each License Period for a Product, the License Period will renew automatically for an additional twelve (12) month period, unless one Party notifies the other Party in writing at least thirty (30) days prior to the end of the then-current License Period that such Party does not want the License Period for the Product to renew for an additional 12-month period. In the case of non-renewal, the Customer’s rights to use the Products will automatically terminate on the last day of the License Period (the last day of the period covered by the paid License Fee).
If the Supplier wants the License to renew for an additional 12-month License Period, then at least sixty (60) days prior to the expiration of the then- current License Period for a Product, the Supplier will invoice the Customer the Supplier’s then-current Licensee Fee for the 12-month renewal of the License Period. If the Customer pays for a renewed License Period prior to the expiration of the then-current License Period, then the Agreement and the License Period will be deemed renewed according to such additional License Period the Customer has paid for.
In the event that the Supplier becomes aware that the Customer has used, or is using, any Product for content creation that is deemed illegal, extreme, politically extreme, inciteful, violent, or otherwise harmful to others, the Supplier will send the Customer a cease and desist notice. If the Customer either fails to respond to the cease and desist notice within 5 days of receipt, and/or continues to use the product to create the same content as described in the cease and desist notice, the Supplier reserves the right to terminate the License until a resolution is agreed between Supplier and the Customer.
Upon termination of the License Period and this Agreement, the License shall terminate, the Customer shall cease all use of the Products, and the Customer will erase all copies of the Product from the Customer’s computers.
The terms in Sections 1 (Definitions and Related Terms), 4 (Intellectual Property Rights), 6 (Payment), 8 (Indemnification), 11 (Limits on Liability), 13 (Confidential Information), 14 (Governing Law and Dispute Resolution), and 15 (General Terms) shall survive the termination or expiration of this Agreement.
11. Limits of liability
The Supplier's liability towards the Customer is in its entirety regulated in and by this Agreement.
UNLESS APPLICABLE MANDATORY LAW STIPULATES OTHERWISE, NEITHER SUPPLIER NOR ITS LICENSORS OR ITS SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE PRODUCTS, THE CUSTOMER’S USE OF THE PRODUCTS OR THE SERVICES PROVIDED BY THE SUPPLIER, EVEN IF SUPPLIER OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SUPPLIER WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
In the event of such mandatory law, the Customer loses the right to argue or allege liability against the Supplier under this Agreement if the Supplier has not received written, specific complaints within thirty (30) days after the Customer discovered or should have discovered the breach of contract or the act or omission of the Supplier give rise to liability that may not be waived or disclaimed under the applicable mandatory law.
The Supplier is not liable for loss, injury or damage to, or deletion of data, software, systems etc. Further, the Supplier is not responsible for direct or indirect loss of the Customer or a third party caused by errors or defects regarding data, software, systems etc. This also applies for losses incurred by third parties and losses that could occur after wrongful use of the Products or use of Products inconsistent with the documentation for the Products.
NEITHER SUPPLIER NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE LESSER OF (a) THE AMOUNTS PAID BY CUSTOMER TO SUPPLIER UNDER THIS AGREEMENT DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, AND (b) NOK 50 000, LESS IN EACH CIRCUMSTANCE AMOUNTS PREVIOUSLY PAID BY THE SUPPLIER IN SATISFACTION OF LIABILITY UNDER THIS AGREEMENT.
THE CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 11 (LIMITS ON LIABILITY) SHALL APPLY (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (B) EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE, AND (C) WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER THEORY OF LIABILITY.
12. Force majeure
Except for the Customer’s payment obligations, in the event an implementation or performance of a Party’s performance under this Agreement is impeded or made significantly more difficult by a factor outside that Party’s reasonable control (each such factor “force majeure”) that Party’s obligations under the Agreement will be suspended to the extent to which and for the period in which they are impeded. A Party affected by such a factor shall notify the other Party immediately that a force majeure is deemed to have occurred. Such factors include, but are not limited to, acts of God, the failure of public or private telecommunications networks, due to fire, explosion, earthquake, storm, flood or other weather; unavailability of necessary utilities or raw materials; Internet service provider failures or delays, or denial of service attacks; war, civil unrest, acts of terror, insurrection, riot; any law, act, order, proclamation, decree, regulation, ordinance, or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of breach by such party of this Agreement); or any other event beyond the reasonable control of the Party whose performance is to be excused.
13. Confidential information
“Confidential Information” means any and all non-public technical and non-technical information disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (c) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (d) the terms of this Agreement. Confidential Information also includes all summaries and abstracts of Confidential Information.
Confidential Information of the Supplier shall include the Products, the documentation, the pricing, and the terms and conditions of this Agreement.
Each Party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other Party. The Receiving Party shall, at all times, both during the term of this Agreement and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by the Receiving Party. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under this Agreement. The Receiving Party agrees to secure and protect the Disclosing Party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of the Receiving Party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees, contractors, and others who are permitted access to the Disclosing Party’s Confidential Information to satisfy its obligations
under this Section 13 (Confidential Information). The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees, contractors, and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.
The obligations set forth above shall not apply to the extent that Confidential Information includes information which the Receiving Party can show: (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Disclosing Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.
The duty of confidentiality does not prevent the Supplier from utilizing the general knowledge and expertise acquired in relation to the Products and the provision of support services under the Support Agreement in the Supplier’s future operations.
14. Governing law and dispute resolution
The Agreement shall be interpreted and governed in accordance with the laws of the State of New York, United States of America, excluding its conflict of law’s provisions which would result in another jurisdiction’s laws applying to this Agreement. Neither the United Nations Convention on Contracts for the International Sale of Goods, the Uniform Computer Information Transactions Act (UCITA), or any locally adopted version of UCITA shall apply to this Agreement.
Any disputes between the Customer and the Supplier arising out of or related to the Agreement including but not limited to any question regarding its interpretation, validity, performance, or termination, or any dispute between the Parties arising from the Parties' relationship created by this Agreement, shall be decided by the State or Federal courts in New York, New York, United States of America. Both Parties hereby consent to the exclusive jurisdiction and venue in such courts, provided that either party shall have the right to seek equitable and injunctive relief in any court of competent jurisdiction.
15. General terms
The Products may utilize software and technology that may be subject to United States and foreign export controls. The Customer acknowledges and agrees that the Products shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Product, the Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Products may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. The Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. The Supplier and its licensors make no representation that the Product is appropriate or available for use in other locations. Any diversion of the Product contrary to law is prohibited. The Product will not be used for nuclear activities, chemical or biological weapons, or missile projects.
If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full effect. Should any of the obligations of this Agreement be found illegal or unenforceable as being too broad with respect to duration, scope or subject matter thereof, such obligations shall be deemed and construed to be reduced to the maximum scope, duration or subject matter allowable by law.
No term or provision of this Agreement shall be considered waived by either Party, and no breach excused by either Party, unless such waiver or consent is in writing signed on behalf of the Party against whom the waiver is asserted. No consent by either Party to, or waiver of, a breach by either Party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either Party.
The Supplier is an independent contractor to the Customer. There is no relationship of agency, partnership, joint venture, employment, or franchise between the Parties. Neither Party has the authority to bind the other Party or to incur any obligation on behalf of the other Party.
This Agreement constitutes the entire agreement between the Parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral.
No terms or conditions in any purchase order from the Customer or other document from the Customer that are in addition to the terms and conditions in this Agreement or that are inconsistent with the terms and conditions in this Agreement shall be binding on the Supplier.
Appendix 1 – End User License Agreement (EULA)