1.0 LICENSED PRODUCT WARRANTY & SUPPORT
1.1. Warranty for the Supplier Product – Licensed Software
1.2. Support Contact
2.0 PAYMENT CONDITIONS
3.0 INDEMNIFICATION AND LIMITATION OF LIABILITY
3.1. Indemnification
3.2. Limitation of Liability
4.0 INTELLECTUAL PROPERTY
5.0 CONFIDENTIALITY
5.1. Confidential Information
5.2. Non-Disclosure and Non-Use of Confidential Information
5.3. Permitted Disclosures
6.0 GOVERNING LAW / VENUE
7.0 TERM AND TERMINATION
8.0 GENERAL PROVISIONS
For purposes of this General Terms and Conditions (“GTC):
“Relimetrics Product” means the Relimetrics’ ReliVision Product Suite (“ReliVision”).
1.0 LICENSED PRODUCT WARRANTY & SUPPORT
1.1 Warranty for the Supplier Product – Licensed Software
- The Supplier warrants that, during the License Term, the Licensed Software will substantially conform to the functional specifications described in the applicable product documentation and Knowledge Hub, provided that it is used in accordance with such documentation and in the approved operating environment. The warranty period shall commence upon license activation and continue for the duration of the License Term.
- Compliance Warranty. The Supplier warrants that, to its knowledge, the Licensed Software does not contain any material errors or defects that would prevent its normal operation and that it is developed in accordance with applicable laws, including but not limited to data protection, telecommunications, and export control regulations, as applicable during the License Term.
- IP Infringement Warranty. The Supplier warrants that the Licensed Software, as delivered and used in accordance with this Agreement, does not infringe any third-party intellectual property rights, including patents, copyrights, trademarks, trade secrets, or other proprietary rights (“Proprietary Rights”). In the event of a claim, Supplier shall, at its option and expense, (a) procure the right for Client to continue using the Software, (b) modify the Software to make it non-infringing, or (c) replace the Software with functionally equivalent software.
- Warranty Exclusions.
The Supplier shall not be responsible for defects or issues arising from:
a. misuse, unauthorized modifications, or use of the Software not in accordance with the documentation;
b. operation of the Software in an unsupported environment or on unsupported hardware;
c. failure by the Client to implement updates or error corrections made available by the Supplier;
d. errors caused by third-party software, systems, or network failures;
e. lack of adequate data backup or security precautions by the Client. - Disclaimer of Additional Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SUPPLIER DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS OR GUARANTEES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. THE SUPPLIER DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ALL DEFECTS WILL BE CORRECTED.
1.2 Support Contact
Supplier agrees to provide maintenance and support for the Relimetrics Product as set forth below:
Hours of Support: per email 24h x 7; per phone during business hours in each geography the supplier supports Mo – Fr (9 a.m. – 5 p.m.)
Telephone Number: +49 30 6392 2929
Supplier support mail address: support@relimetrics.com
Supplier Web Site: www.relimetrics.com
2.0 PAYMENT CONDITIONS
- Payment. The following payment conditions shall apply: Payment thirty (30) days NET after the invoicing date. All payments of invoiced amounts must be paid in full in EUROs or in USD to Relimetrics, Inc. or its subsidiary, Relimetrics GmbH, at the address written in the invoice. The Client acknowledges that if a payment is delayed for more than thirty (30) days, the Supplier in addition to any other remedy available to the Supplier and not as an election of remedies, may suspend its performance here under until no past due payments are outstanding.
- Taxes. All payments and amounts due are NET and shall be paid without deduction or set-off or counter claim, free and clear of any restrictions or conditions, and without deduction for any taxes, levies, imposts, duties, fees, deductions, assessments, withholdings or other governmental charges (each and all, “Taxes”). The Client will pay or reimburse all Taxes (VAT), based on laws and regulations.
3.0 INDEMNIFICATION AND LIMITIATION OF LIABILITY
3.1 Indemnification
Both the Supplier and the Client shall indemnify and hold each other harmless from and against any third-party claims, damages, liabilities, costs, and expenses (including, without limitation, reasonable attorneys’ fees and court costs) (collectively, the “Claims”) arising out of (1) a violation of any laws or regulations, or (2) gross negligence or willful misconduct. The indemnifying party shall, at its own expense, defend the indemnified party against any Claim, provided that: (a) the indemnified party promptly notifies the indemnifying party of any Claim; (b) the indemnifying party has sole control of the settlement or defense of such Claim, provided that such settlement or defense does not contradict the interests of the indemnified party, nor impact the property or intellectual property of the indemnified party without the prior written consent of the indemnified party; and (c) the indemnified party reasonably cooperates with the indemnifying party to facilitate such settlement or defense. Except in the case where the indemnifying party refuses to fully defend and hold harmless the indemnified party against such losses, the indemnified party shall not settle any Claim subject to indemnification without the prior written consent of the indemnifying party, and the indemnifying party shall not be liable for any settlement amounts entered into without such consent, which shall not be unreasonably withheld, delayed, or conditioned. The indemnifying party may settle any Claim on behalf of the indemnified party without the indemnified party’s consent, provided the only consideration required from the indemnified party is monetary and is paid entirely by the indemnifying party. Except as set forth in the preceding sentence, the indemnifying party may not settle any Claim or consent to any judgment without first obtaining the written consent of the indemnified party, which shall not be unreasonably withheld, delayed, or conditioned. The indemnified party may participate in its own defense at its own expense.
3.2 Limitation of Liability
EXCEPT WITH RESPECT TO EITHER PARTY’S CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 5 (CONFIDENTIALITY), SUPPLIER’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 3.1 (INDEMNIFICATION), OR DAMAGES ARISING FROM A PARTY’S BAD FAITH OR INTENTIONAL MISCONDUCT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WITH RESPECT TO THE SUPPLIER’S INTELLECTUAL PROPERTY INDEMNIFICATION OBLIGATION HEREUNDER, IN NO EVENT WILL THE SUPPLIER’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SUM OF FEES PAID BY THE CLIENT’ (LICENSEE) DURING THE ONE YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
4.0 INTELLECTUAL PROPERTY
- Relimetrics Product License. Subject to the Client’s payment of the licensing fees and its conformance to the licensing terms and conditions set in this GTC, the Supplier will grant the Client a non-exclusive,limited, non-transferable license during the Term to use the Relimetrics Products, in object code form only, for the sole purpose of applying Rules to Datasets in order to generate Results.
- License Restrictions. Except for the rights expressly granted under this Section and, where applicable, under a valid reseller agreement executed between the parties, the Licensee shall not: (a) resell, sublicense, reproduce (except for a reasonable number of copies for backup or archival purposes), distribute, transfer or otherwise grant access to or transmit the Relimetrics Product to any third party forany purpose, or (b) modify, adapt, alter, translate, or create derivative works from the Relimetrics Product and its software, or (c) allow any third party to resell, sublicense, distribute, transfer or otherwise grantaccess to or transmit the Relimetrics Product for any purpose, or (d) reverse engineer, decompile,disassemble, or otherwise attempt (e) to defeat, avoid, by pass, remove, deactivate or otherwise circum ventany software protection mechanisms in the Relimetrics Product, including without limitation any such mechanism used to restrict or control the functionality of the Relimetrics Product or (f) to derive the Relimetrics Product software's source code or the underlying ideas, algorithms, structure or organization from the Relimetrics Product or Rules; or (g) provide or make available the Relimetrics Product to any third party; or (h) distribute, transfer or otherwise grant access to or transmit the Relimetrics Product software toany third party; or (i) remove or obfuscate any product identification, copyright or other proprietary noticefrom any element of the Relimetrics Product hardware and software documentation; or (j) use, or authorize to use, the Relimetrics Product software as on-demand software (e.g. SaaS, PaaS, or a similar model) orotherwise permit any person or entity to have access to the Relimetrics Product software by means of atime sharing, remote computing services, networking, batch processing, service bureau or time sharing arrangement.
- Client Ownership. The licensing of Relimetrics Product grants the Client (Licensee) no title to or ownership of the Relimetrics Product hardware and software products and its components, except for the limited right of using the Relimetrics Product software in connection with the Client’s parts and images, inobject code form only, for the sole purpose of applying algorithms operating as part of the Relimetrics Product Software to Datasets, including images, features, signals, to generate results, meaning the outputobtained by applying a Rule to Datasets via the application of the Relimetrics Product Software. All data, copyrights, reports, and works of authorship developed while using the Relimetrics Product software at the Client’s premises shall be the sole property of the Client.
- Reserved Rights. Except for the limited rights granted in this Section 8, the Supplier reserves all right, title and interest in and to the Relimetrics Product and its components, including without limitation the right to market and distribute any Supplier’s products and services to any third party, either alone or combined withthird party services and products, either directly by the Supplier or through third parties. The Client acknowledges that nothing in this GTC is intended or will be construed to limit in any way the right or power of the Supplier to grant to any other person a license to use any Supplier’s products or services. In addition, Licensee acknowledges that the Supplier has expended considerable time, effort and funds to compile the Rules. Title to all Rules configured by the Supplier shall vest and at all times remain vested in the Supplier. Licensee shall have no rights with respect to the Rules except as set forth in this Sections 2. Except as otherwise provided here in, including, but not limited to Section 8 of this Agreement, immediately following the expiration or earlier termination of this Agreement, Licensee shall cease all use of the Rules, purge the Rules from its records and destroy all copies of the Rules in its possession or control, and Licensee shall deliver written certification of such destruction to the Supplier no later than thirty (30) days following the expiration or earlier termination of this Agreement.
- Items delivered under this GTC such as operation and maintenance manuals shall be delivered with the right to copy for internal use and/or copy and deliver with the right to use by the Client.
- The Supplier warrants that the Services performed or delivered under this GTC will not in fringe or otherwise violate the intellectual property rights of any third party in the United States or any foreign country.
5.0 CONFIDENTIALITY
5.1 Confidential Information
The Parties agree that during the course of performance under this Agreement, each party may disclose to the other party certain Confidential Information (defined below) of such disclosing party. “Confidential Information” means any information, technical data or know-how, including, but not limited to, that which relates to research, products, services, customers, markets, software, developments, inventions, processes, designs, drawings, engineering, marketing or finances of the disclosing party, which Confidential Information is designated in writing to be confidential or proprietary, or if given orally is confirmed promptly in writing as having been disclosed as confidential or proprietary. Without limiting the generality of the foregoing, anything to the contrary herein not with standing, the Confidential Information of Relimetrics shall include the Relimetrics Product and all technical and business information and documentation relating thereto. Confidential Information does not include information, technical data or know-how which (i) is in the possession of the receiving party at the time of disclosure as shown by the receiving party’s files, records and other competent evidence prior to the time of disclosure; or (ii) prior or after the time of disclosure becomes part of the public knowledge or literature, not as a result of any breach of this Agreement by the receiving party, or (iii) is approved for release by the disclosing party, or (iv) is independently developed by the receiving party without the use of any Confidential Information of the other party.
5.2 Non-Disclosure and Non-Use of Confidential Information
Each of the Parties agrees not to use the Confidential Information disclosed to it by the other party for its own use or for any purpose except as necessary in the performance of its obligations under this Agreement. Neither party will disclose the Confidential Information of the other to third parties other than its employees, personnel (including Users in the case of Licensee) who are required to have the information in order to carry out such Parties obligations here under. Each Party shall ensure that to personnel to whom Confidential Information of the other is disclosed abide by confidentiality obligations substantially similar to the terms of this Agreement. Each Party agrees that it will take use the same standard of care that it uses in protecting its own confidential information of similar nature to protect the secrecy of and avoid disclosure or use of Confidential Information of the other Party and to prevent it from falling into the public domain or the possession of unauthorized persons by breach of the terms of this Agreement, but in no case less than reasonable care. Each Party agrees to promptly notify the other in writing of any misuse or misappropriation of Confidential Information of the other that may come to its attention in breach of this Agreement. In the event of any expiration or termination of this Agreement, the receiving Party shall destroy or return to the disclosing Party all copies of such disclosing Party’s Confidential Information in such receiving Party’s possession or control.
5.3 Permitted Disclosures
Not with standing the foregoing, the Receiving Party may disclose Confidential Information, including the existence and the terms of this, to the extent such disclosure is reasonably necessary to: (a) prosecuteor defend litigation, (b) exercise rights hereunder provided such disclosure is covered by terms of confidentiality similar to those set forth herein, (c) facilitate discussions with prospective investors in connection with financing arrangements or a proposed acquisition of such party, subject to appropriate confidentiality agreements, and (d) comply with applicable governmental laws, regulations and orders. In the event that any of the Contract Partnerts shall reasonably deem it necessary to disclose, pursuant to clauses (a) or (d) above, the Confidential Information belonging to the other party, the Disclosing Party shall to the extent possible give reasonable advance notice of such disclosure to the other party and take reasonable measures to ensure confidential treatment of such Confidential Information.
6.0 GOVERNING LAW / VENUE
This GTC will be governed and construed under the laws of Germany. In no event shall this agreement be governed by the United Nations convention on contracts for the international sales of goods. All disputes arising out of or related to this GTC shall be subject to the exclusive jurisdiction and venue of the Berlin courts located in Germany.
7.0 TERM AND TERMINATION
- Term. The term of this Agreement shall be either monthly or annual.
- Termination. The Client may terminate this Agreement upon ninety (90) days’ prior written notice. In case of Professional Services, upon termination, the Supplier will cease all work, deliver to the Client any work in progress or completed prior to the termination date and return or destroy any Confidential Information received from the Client, subject to applicable data retention obligations. The Client shall pay the Supplier the full fees for all completed and accepted deliverables; and a pro-rated, equitable amount for partially completed work up to the effective termination date.
- Refund Policy for Licensed Products [for annual upfront payments]. All license fees are non-cancellable and non-refundable, regardless of actual usage, except in the event of a termination for cause by the Client due to a material breach by the Supplier that is not cured within forty-five (45) days of written notice. In such case, the Supplier shall issue a pro-rated refund within ninety (90) business days using the following formula: Total License Fee Paid / Total Number of Months in the License Term * Remaining Number of Full Months until License Expiration. No other refunds shall be issued for any other components of the solution, including support, maintenance, or professional services. Upon termination with cause, the Client (Licensee) will immediately stop using the Licensed Product.
- Survival. The provisions relating to intellectual property ownership, confidentiality, indemnification, limitation of liability, disclaimers, payment obligations, and consequences of termination shall survive expiration or termination of this Agreement. Mutual confidentiality obligations shall survive for three (3) years following termination. All other rights and obligations shall cease upon termination.
8.0 GENERAL PROVISIONS
- Force Majeure. The Supplier shall not be held responsible for any delay or failure in performance here under caused in whole or in part by fire, strike, flood, embargo, labor dispute, delay or failure of anysubcontract, act of sabotage, terrorism, riot, accident, delay of carrier or supplier, internet outages,voluntary or mandatory compliance with any governmental act, regulation or request, act of God or by public enemy, or any act or omission or other cause beyond the Supplier’s control.
- Independent Contractor. The Supplier is an independent contractor, and nothing in this GTC creates any partnership, joint venture, agency, franchise, sales or employment relationship between the Supplier and the Client.
- Export Control. The Client understands and acknowledges that the Supplier is subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce which prohibits export or diversion of certain products, information, technology and technical data to certain countries.
