Terms and Conditions
By accessing, browsing, clicking on an “accept” button, installing, copying, or otherwise using the Product (as defined below) you on behalf of the company you are using the Product for (the “Customer”) accept Tricentis Clickwrap License Terms and Conditions (the “Agreement”) and you confirm that you have the legal power and full authority to bind Customer on these terms. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, DO NOT INSTALL OR USE THE PRODUCT.
1. SCOPE AND DEFINITION
1.1. Scope. These Tricentis Clickwrap License Terms and Conditions (V04-2021) shall apply to the licensing of the Software as well as the provision of the Platform Services if you have not entered into a valid written agreement with Company regarding the use of the Product.
1.2. Definitions. Capitalized terms not otherwise defined shall have the meaning set forth in this section.
1.2.1. “Affiliate” means any individual, corporation, partnership, or business entity that controls, is controlled by, or is under common control by an entity with an ownership of more than 50% of the voting shares.
1.2.2. “Company” means Tricentis GmbH, Leonard-Bernstein-Strasse 10, 1220 Vienna, Austria (if Customer is located in Europe, Middle East, Africa or India) OR Tricentis APAC Pty. Ltd., Level 3, 2-12 Foveaux Street, Surry Hills NSW 2010, Australia (if Customer is located in Australia or New Zealand) OR Tricentis USA Corp., 2570 W El Camino Real, Suite 540, Mountain View, CA 94040, USA (if Customer is located in North, South and Central America) Tricentis SGP Pte. Ltd, 1 Scotts Road, #21-10 Shaw Center, Singapore 228208 (if Customer is located in Asia Pacific Countries, except Australia and New Zealand) OR Neotys S.A.S., 389, avenue du Château de Jouques, 13420 Gémenos, France (for existing Neotys-Customer except for India and North, South and Central America) OR Neotys Software Products Pvt. Ltd., No 22 C/O Fintax Suhani Exports, 3 Rd Flr, Oxford Palazzo Old Airport Rd, Rustambag, Bangalore, Karnataka – 560017 (for existing Neotys-Customer located in India) OR Neotys USA Inc., 420 Bedford Street, Suite 310, Lexington, MA 02420 (for existing Neotys-Customer located in North, South and Central America)
1.2.3. “Confidential Information” means any data or information that is disclosed to one party (“Recipient”) by the other party (“Discloser”) and not generally publicly available in whatever form, whenever and however disclosed, including but not limited to the Product and Documentation, including all data, code, techniques, algorithms, methods, logic, know-how, architecture, and designs embodied or incorporated therein, client lists, information security plans, business continuity plans, trade secrets and proprietary information, personal identifiable data or any data or information which is either identified as confidential, or which by its nature a reasonable business person would consider to be proprietary or confidential.
1.2.4. “Customer” means the entity who licenses, subscribes or accesses the Products, Documentation and Support (if applicable).
1.2.5. “Customer Material” means any work, material, content, code or data provided to Company by Customer in connection with Customer’s use of, or resulting from Customer’s use of, the Products.
1.2.6. “Customer System” means any system owned, operated, or managed by Customer or its Affiliate on which the Software is installed, or which is accessed and used for the Platform Services.
1.2.7. “Documentation” means Company’s standard written user documentation, explanatory documents, notes and/or handbooks that describe the design, functions, operation, or use of the Products as updated by Company from time to time.
1.2.8. “Fee“ means any fees which Customer is required to pay in accordance with this Agreement.
1.2.9. “Intellectual Property Rights” or “IP Rights” mean any worldwide common law and statutory rights, whether arising under the applicable law or any other state, country, jurisdiction, government, or public legal authority, associated with (i) patents, utility models, and invention disclosures and applications therefor, (ii) trade secrets, or proprietary information, (iii) copyrights; (iv) trademarks and service marks, (v) industrial designs, (vi) all rights in databases and data collections; (vii) all economic rights of authors and inventors, however denominated, (viii) rights to apply for, file for, certify, register, record, or perfect or any similar or equivalent rights to any of the foregoing, provided those rights or applications for any of those rights ( where such applications can be made) are capable of protection in the applicable jurisdiction.
1.2.10. “Platform Services” mean any Software made available on a remote basis by Company to Customer.
1.2.11. “Products” mean collectively the Software, the Platform Services, provided by Company to Customer as identified on the software download page or landing page or invitation message, or otherwise, provided to Customer by Company under this Agreement.
1.2.12. “Software” means any software as standard computer program in executable code, including its components as well as all available technology adapters.
1.2.13. “Support” means standard support services in connection with the Software and/or the Platform Service provided in accordance with Company’s Support plan and any applicable service level agreement.
1.2.14. “Term” means the duration of Customer’s rights to use or access the Products including Support.
1.2.15. “Third-Party Software” means software not owned by Company and licensed to or used by Customer, whether supplied by Company or a third party.
1.2.16. “User” means Customer’s or Customer’s Affiliate employees or contractors for whom the use of Product and Documentation is licensed or subscribed for.
2. IP RIGHTS
2.1. Ownership. Company retains all rights, title, and interest, including all IP Rights, in and to the Products and its Confidential Information and Customer shall retain all rights, title, and interest in and to the Customer Systems, Customer Materials and its Confidential Information. The Products are made available on a limited license or access basis, and no ownership right is conveyed to Customer, irrespective of the use of terms such as “purchase” or “sale”. Customer may not remove, alter, or obscure any proprietary rights notices contained in or affixed to the Products. Except for the rights expressly granted in this Agreement, no license or right is granted to Customer by Company by implication or otherwise.
2.2. Customer Material. For the sole purpose of providing the Products, Customer hereby grants to Company and its Affiliates and subcontractors a worldwide, non exclusive, revocable license to use Customer Materials during the Term. Customer shall ensure that its use of the Products and all Customer Materials are at all times compliant with applicable local, state, federal and international laws and regulations.
2.3. Open Source Component. Customer acknowledges that certain software components of the Product may be covered by open source licenses as promulgated by the Open Source Initiative or by the Free Software Foundation. To the extent required by such open source license, the terms of such license will apply to such open source component in lieu of the relevant provisions of this Agreement. If such open source license prohibits any of the restrictions in this Agreement, such restrictions will not apply to respective open source component. Company shall provide Customer with a list of open source components upon Customer’s request.
2.4. Feedback. Customer or its Users may submit feedback while using the Products. To the extent that Customer has the right, Customer assigns to Company all right, title and interest in and to any IP Rights associated with any suggestions, enhancement requests, communications, recommendations or other advice (“Feedback”) that it or its Users provide to Company relating to the Products or the Documentation for all possible uses by Company (including adaptation, reproduction, editing, alteration, addition to and/or deletion from, rearrangement, transposition, translation) and exploitation of the Feedback, and otherwise agrees not to enforce, and otherwise waives to the fullest extent legally possible, any rights that it or the User may have now or in the future in respect of such Feedback.
2.5. Aggregated Data. Company may aggregate the metadata and usage data of Customer or User collected or otherwise made available through the Products so that the results are non-personally identifiable with respect to Customer or User (“Aggregated Data”). The Aggregated Data will be deemed Company’s Confidential Information, and Customer acknowledges that Company may use the Aggregated Data, both during and after the Term, (i) for its own internal, statistical analysis, (ii) to develop and improve the Products, and (iii) to create and distribute reports and other materials regarding use of the Products. For purposes of clarity, nothing in this section gives Company the right (or ability) to publicly identify Customer as the source of any Aggregated Data.
3. PRODUCT USAGE
3.1. Usage Rights. Subject to payment by Customer of the Fees and subject to continuous compliance with the Agreement, Company hereby grants to Customer a limited, non-exclusive, non-transferable, non-sublicensable right to use the Products by its Users in accordance with this Agreement and the Documentation during the Term, solely for Customer’s internal business purposes. In case of Software, Customer may install the Software on its Customer System.
3.2. Delivery. Company shall execute, perform or otherwise make available the Software electronically and the Platform Services over the Internet and shall deliver the applicable license keys and/or login instructions to the email address(es) provided to Company. Customer is responsible for installation of any downloadable Software, and Customer acknowledges that Company has no further delivery obligation with respect to downloadable Software after delivery of the license keys.
3.3. Restrictions. Customer shall not allow or assist any third party to and shall be responsible for ensuring that its Users do not: (i) modify, adapt, translate, create derivative works of, reverse engineer, decompile, disassemble, reproduce or otherwise attempt to derive the source code of, any part of the Products, any header files or class libraries contained in any part of the Products or any underlying ideas, algorithms, file formats, except as permitted by law, (ii) sell, resell, license, sublicense, distribute, transfer or provide access to a third party, rent or lease any part or include the Products in a service bureau or outsourcing offering, or otherwise encumber the Products with any lien or grant or allow third parties the registration of a security interest, time share or offer as a service, (iii) use the Products for the benefit of any third party, publish or otherwise disclose to any third party any results of any benchmark or other performance tests of the Products or publicly disseminate information regarding the performance of the Products or incorporate the Products or any part of it into a product or service provided to third parties, (iv) remove, alter, or obscure any proprietary rights notices contained in or affixed to the Products, (v) use the Products in any hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation, vehicles with autonomous driving systems or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of products could lead directly to death, personal injury, or severe physical or environmental damage, (vi) interfere with any license key mechanism in the Products or otherwise circumvent mechanisms in the Products intended to limit the scope of use or to try to gain unauthorized access to or disrupt any service, device, data, account or network, (vii) use the Products in a way prohibited by law, regulation, governmental order or decree, or to violate the rights of others, and (viii) to spam or distribute malware in a way that could harm the Products or impair anyone else’s use of it.
3.4. Backup. Except for maintaining one archival copy of the Software for backup purposes only, Customer shall not make copies of the Software. Nothing herein shall limit or restrict Customer from providing Users with copies of the Documentation for their internal business use, in connection with the license granted in this section.
3.5. Support. Subject to the payment by Customer of the Fees (if any), Company provides Customer with Support for the Software and/or the Platform Services during the Term. If not otherwise stated, Gold Support Plan applies. Company may also access Customer’s Platform Services account or instance or request access to the Software in order to respond to support requests.
3.6. Usage Scope and Verification. Only Customer and its Users may access and use the Products within the authorized scope and Customer is responsible for all Users’ compliance in accordance with this Agreement. Without limiting the foregoing, the Software and/or Platform Service may not be simultaneously accessed or used by more than the quantities purchased by Customer. Upon Company’s written request Customer shall provide to Company reasonable assistance to verify Customer’s compliance with this Agreement. If Company determines that Customer has exceeded its permitted scope of use, Company shall notify Customer of its determination and (i) invoice Customer for additional User licenses or subscriptions commensurate with Customer’s actual past use and Customer shall pay Company’s invoice on receipt or (ii) require Customer to immediately discontinue the unpermitted use and terminate Customer’s access to and use of the Product.
3.7. Hosting Platform Provider. In order to provide the Platform Services, Company uses third party Platform hosting providers. Company’s platform hosting providers are identified in the applicable Platform Service infrastructure. Company may change, discontinue or replace platform hosting providers from time to time, provided there is no material change to, discontinuation or termination of the Platform Service or applicable data protection and IT-security standards.
3.8. Third-Party Software. Customer is solely responsible for the installation, maintenance, repair, use, and upgrade of Third-Party Software the Products are used with. Company disclaims all warranties or statutory guarantees of any kind with respect to such Third-Party Software.
3.9. Evaluation or Beta License. If Products and Documentation are provided to Customer for evaluation, beta, or release candidate purposes, Company grants to Customer a limited, nonexclusive, non-transferable evaluation license to use the Products and Documentation solely for evaluation prior to purchase or implementation (“Evaluation License”). The Evaluation License shall terminate immediately upon notice from Company in its sole discretion. Notwithstanding any other provision contained in this Agreement, the Products and Documentation provided pursuant to an Evaluation License are provided to Customer “AS IS” without indemnification, support, or warranty of any kind, express or implied, unless otherwise required by law. Except the terms in this section conflict with any other provisions of this Agreement, this section shall prevail for Evaluation Licenses only.
4.1. Payment. Fees (if any) are due and payable thirty (30) days after Customer’s receipt of an undisputed invoice. Invoices are deemed to be accepted if not disputed in writing within ten (10) days after receipt. Customer shall provide Company with accurate billing and contact information and notify Company of any changes to such information. All Fees are provided for the Term and are non-refundable and non-cancellable except as otherwise set forth herein. If Customer fails to pay, Company shall be entitled, at its sole discretion, to: (i) suspend provision of the Products until Customer fulfills its pending obligations; (ii) charge Customer an interest rate in accordance with 4.3 (Interest) below; and/or (iii) terminate this Agreement. Should Company be required to begin an action against Customer to collect any payment due, Customer shall pay all costs of collection together with interest, and legal and other administrative fees. If applicable, if Customer exceeds the license capacity, in addition to Company’s other remedies, Customer will be charged additional fees.
4.2. Fee Modification. The Fees are in consideration of the current version of the Products and Customer acknowledges that it is not relying on future availability of any Products beyond the current Term or any Product upgrades or feature enhancements in consideration of the Fees paid for the Term. Upon the renewal, Company reserves the right to modify the Fees payable by Customer upon ninety (90) days’ prior the end of the current Term and written notice to Customer.
4.3. Interest. If any sum payable under this Agreement is not paid when due, without prejudice to Company’s other rights under this Agreement, that sum will bear interest from the due date until the date when payment is received by Company, both before and after any judgment at the rate of one and a half percent (1.5%) per month, subject to the rate allowed by applicable law. In the event Customer in good faith disputes any amount due under any invoice issued by Company, Customer shall pay the undisputed amount, and the parties shall use diligent efforts to resolve any such dispute.
4.4. Taxes. All payments, Fees, and other charges payable by Customer to Company under this Agreement are exclusive of all sales, goods and services, value added, property, excise, or any other taxes, levies, and assessments of any jurisdiction. Customer shall bear all such taxes, levies, and assessments imposed on Customer or Company arising out of this Agreement, excluding any tax based on Company’s net income. If any deduction or withholding is required by law to be made by Customer, the amount of Fees shall be increased to the amount which, after making any deduction or withholding, leaves the amount equal to Fees which would have been due if no deduction or withholding had been required. Prior to any deduction or withholding, Customer shall inform Company about the amount of such deduction or withholding and shall request from Company a tax residency certificate, or any other documents required by law, to claim an exemption from or reduction of any such deduction or withholding. Customer to whom the deduction or withholding applies, shall pay to the relevant taxation authority, or other authorities, as appropriate, the applicable amount of the deduction or withholding, and furnish to Company all documents confirming such deduction or withholding. These documents should include, to the extent existing, any evidence necessary to ensure utilization of tax credit by Company. Company will repay to Customer the portions of a gross-up amount which led to an effective tax saving because of tax credit available to Company.
5. WARRANTY AND LIABILITY
5.1. Representation. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
5.2. Company warrants to Customer that (i) the Software will conform in all material respects to the Documentation during the first six (6) months of this Agreement, and/or (ii) the Platform Services will conform in all material respects to the Documentation in effect during the Term. Notwithstanding any provision of this Agreement to the contrary, Company shall not have any obligation under this section to the extent a nonconformity of the Products are the result of (a) the Products having been modified, repaired, or reworked by any party other than Company or a third party on behalf of Company, (b) any use of the Products in conjunction with another product or service not recommended in the applicable Documentation, (c) any damage to the Products by power failure, fire, explosion, or any act of God or other cause beyond Company’s reasonable control, or (d) any use of or access to the Products not in conformance with the Documentation. Warranty is fully excluded in cases of Evaluation, Beta or free-of-charge (trial) use of the Products.
5.3. Remedy. If the Product does not conform to the warranty as provided in 5.2 (Warranty), Company will use commercially reasonable efforts to correct the nonconformity causing the warranty failure in the Product provided the failure can be recreated by the Customer or Company. Customer shall notify Company in writing, specifically describing the non-conformity within the warranty period and Company shall verify the existence of such non-conformity before Company proceeds the correction. For any breach of 5.2 (Warranty), Customer’s sole and exclusive remedy will be as described in this section.
5.4. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN 5.1 (WARRANTY) AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS ARE PROVIDED BY COMPANY “AS IS”, AND NEITHER COMPANY NOR ITS THIRD-PARTY LICENSORS MAKE ANY OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES ARISING UNDER STATUTE, USAGE, TRADE CUSTOM, ACCURACY, OR OUT OF TITLE, COURSE OF DEALING, PERFORMANCE OR OTHERWISE. COMPANY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS RELATING TO THE PRODUCTS INCLUDING, WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR ANY INTENDED OR PARTICULAR PURPOSE. COMPANY DOES NOT GUARANTEE THAT THE PRODUCTS WILL BE FREE OF DEFECTS, RUN ERROR-FREE OR UNINTERRUPTED OR MEET CUSTOMER’S REQUIREMENTS.
5.5.1. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY OTHER THAN SUBSECTION 5.5.2 BELOW AND TO THE EXTENT PERMITTED BY APPLICABLE LAW REGARDLESS OF THE FORM OR CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, OR THE NUMBER OF CLAIMS (I) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CONSEQUENTIAL SPECIAL, INCIDENTAL, PUNITIVE OR INDIRECT DAMAGES, ANY LOSS OF REVENUES OR PROFITS, LOSS OF GOODWILL, LOSS OF OR INACCURATE DATA, LOSS OF USE, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY COST OF COVER ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) EACH PARTY’S AGGREGATE LIABILITY FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT WILL BE LIMITED TO THE FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER THAT IS THE SUBJECT OF SUCH CLAIM WITHIN TWELVE (12) MONTHS PRECEEDING THE DATE OF THE CLAIM.
5.5.2. THE PROVISIONS OF SUBSECTION 5.5.1 SHALL NOT APPLY FOR A BREACH OF SECTIONS 2.1 (OWNERSHIP), 3 (PRODUCT USAGE), 6 (INDEMNITY), 7 (CONFIDENTIALITY), AMOUNTS OWED BY CUSTOMER, PERSONAL OR PROPERTY DAMAGE, INCLUDING DEATH, BODILY INJURY OR DAMAGE TO HEALTH CAUSED INTENTIONALLY OR BY GROSS NEGLIGENCE.
5.5.3. THE PARTIES AGREE THAT THIS SECTION REFLECTS A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES IN LIGHT OF THE TERMS OF THIS AGREEMENT. THIS LIMITATION OF LIABILITY WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREUNDER.
6.1. By Company.
6.1.1. Company shall defend, or at Company’s option, settle, any claim, demand, suit, or proceeding made or brought by a third party (“Claim”) against Customer, its directors, employees, and agents by a third party alleging that the authorized use of the Product in accordance with this Agreement infringes such third party’s IP Rights and shall indemnify Customer from any costs, damages, liabilities, losses, claim, demand, judgement or settlement and expenses (including reasonable attorneys’ fees) finally awarded against Customer as a result of, or for amounts paid by Customer under a court-approved settlement of a Claim.
6.1.2. If Company receives notice of a Claim, Company may in its discretion and at no cost to Customer (i) modify the Product so that it no longer infringes, without breaching section 5.2 (Warranty), (ii) obtain a license for Customer’s continued use of the Product in accordance with this Agreement, or (iii) terminate this Agreement upon thirty (30) days’ written notice and refund Customer as follows: (a) as it relates to perpetual software licenses, refund the amount paid by Customer for the Software as depreciated on a straight line basis over a five (5) year period, upon return or certified destruction of the Software, (b) as it relates to subscription licenses, refund the prepaid but unused subscription fee that corresponds to the period of license discontinuation upon return or certified deinstallation of the Software or discontinuation of the Platform Service.
6.1.3. The above obligations do not apply to the extent a Claim arises from: (i) Customer Materials or Customer Systems, (ii) Customer’s material breach of this Agreement, (iii) Customer’s use of the Product in combination with technology not provided by Company, (iv) Company’s compliance with any requirements or specifications set forth in Customer Materials, (v) Customer’s use of any unsupported release of the Software, (vi) a Third-Party Software or (vii) Customer’s failure to install any update provided by Company that would result in total or partial avoidance of an alleged infringement.
6.2. By Customer. Customer shall defend, or at Customer’s option, settle any Claim made or brought against Company, its directors, employees, Affiliates and agents by a third party arising out of (i) Customer’s breach of its Product usage rights, or (ii) Customer’s operation of the Customer Systems and/or use of Customer Material, and shall indemnify Company from any and all costs, damages, liabilities, losses, and expenses (including reasonable attorneys’ fees) incurred by or awarded against Company as a result of, or for amounts paid by Company under a court-approved settlement of a Claim. Customer’s obligations under this section include claims arising out of the acts or omissions of its Users and anyone who gains access to the Product as a result of Customer’s failure to use reasonable security precautions, even if the acts or omissions were not authorized by Customer.
6.3. Process. The obligations in this section 6 (Indemnity) apply only if (i) the indemnified party promptly notifies the indemnifying party in writing of a Claim, (ii) the indemnified party provides the indemnifying party with reasonable assistance, at the indemnifying party’s reasonable and documented expense, and (iii) the indemnified party provides the indemnifying party with the exclusive right to control and the authority to settle a Claim, provided, however, that the indemnifying party will not settle a Claim that admits fault or liability of the indemnified party without the indemnified party’s prior written consent (which shall not be unreasonably withheld) and (iv) the indemnified party will have the right to participate in the matter at its own expense.
6.4. Exclusive Remedy. This section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for relevant claims as described in this section.
7. CONFIDENTIAL INFORMATION
7.1. Confidentiality Obligations. Except as otherwise set forth in a separate Non-Disclosure Agreement, during the Term and five (5) years thereafter, the Recipient shall (i) use Confidential Information solely for performing its obligations or exercising its rights under this Agreement, (ii) keep all Confidential Information in strict confidence; and (iii) not disclose, cause or permit disclosure of the Confidential Information to any third party, except as permitted under this Agreement. Specifically, the Recipient shall limit disclosure of any Confidential Information to its directors, officers, employees, Affiliates, agents, or representatives (collectively “Representatives”) that have a “need to know” in order to carry out the purpose set forth above and ensure that such Representatives have signed an agreement containing disclosure and use provisions similar to those set forth herein. The Recipient shall be held responsible to the same standard of care as it applies to its own confidential information, which shall not be less than reasonable care. The Recipient is responsible for any breach of this Agreement by any of its Representatives.
7.2. Exceptions. Confidential Information shall not include information that the Recipient can demonstrate (i) was in the Recipient’s possession prior to disclosure hereunder; (ii) is or becomes publicly available through no fault of or failure to act by the Recipient in breach of this Agreement; (iii) was rightfully known by the Recipient prior to disclosure of such information by the Discloser to the Recipient; (iv) was independently developed by the Recipient without any use of or access to the Confidential Information; and (v) is required to be disclosed by a judicial or governmental order, and Discloser has been given timely notice (if legally permissible) of such order so that Discloser may seek an injunction or protective order. If only particular parts or aspects of Confidential Information become subject to any of the foregoing exceptions, all other portions or aspects shall remain subject to this Agreement.
8. DATA PRIVACY AND IT-SECURITY
8.1. Personal Data. Each party warrants that it shall use, collect, store and/or process personal identifiable data or personal information as defined under and in accordance with any applicable privacy laws (“Personal Data“).
8.2. Data Collection. Each party acknowledges it is necessary for the cooperation to exchange and allow the use of the other party’s contact information relating to their respective Representatives for (i) invoicing, billing and other business inquiries, (ii) contract and customer management and (iii) order fulfilment and deliveries to Customer (“Contact Data”) and hereby authorizes such exchange, use and processing of Contact Data by the receiving party or its respective Affiliates. Each party agrees that it shall process Contact Data as a controller (where this concept is under the applicable law), in compliance with all applicable privacy laws and regulations and their respective privacy policies and in a safe and secure manner preventing unauthorized access, use or disclosure use of Contact Data only for the purposes outlined herein.
8.3. Data Processing. It is under Customer’s sole discretion and Company has no control over the nature, scope, or origin of, the data processed by the Products and Customer shall have sole responsibility for the adequacy, relevancy, accuracy, quality, and legality of it. Customer shall not use any Personal Data in connection with, to input into and process while using the Products. In no event shall Customer use sensitive Personal Data, such as information on health, sexual orientation, political orientation, race, etc. Neither Party authorizes any exchange, use or processing of other Personal Data (other than Contact Data).
8.4. Credentials. Access credential for the Products may not be shared with third parties or by and between Users or other Customer’s employees or contractors. Customer shall ensure that all Users keep their user IDs and passwords for the Product strictly confidential and not share such information with any unauthorized persons. User IDs are granted to individual, named persons and shall not be shared. Customer is responsible for all actions taken through use of Customer accounts and passwords. Customer agrees to notify Company immediately if Customer becomes aware of any unauthorized use of the Products.
8.5. Security. Each Party will use adequate contractual and technical mechanisms to protect any data of the other party received by it. Customer acknowledges that use of the Product necessarily involves transmission of Customer Material over networks that are not owned, operated or controlled by Company, and Company is not responsible for any Customer Material’s lost, altered, intercepted or stored across such networks. Company cannot guarantee that its security procedures will be error-free, that transmissions of Customer Material will always be secure or that unauthorized third parties will never be able to defeat Company security measures or those of Company‘s third-party hosting providers. Customer is solely responsible for maintaining the security of its Customer System. Company assumes no responsibility or liability for Customer Material.
9. TERM AND TERMINATION
9.1. Term. This Agreement shall remain in effect for the Term, unless terminated earlier in writing pursuant to the terms of this section.
9.2. Termination for Breach. Either party may terminate this Agreement immediately upon written notice to the other party, if the other party is in material breach of this Agreement and fails to correct the breach within thirty (30) days following written notice from the other party specifying the breach. Notwithstanding anything to the contrary, Company may alternatively suspend use of the Product, if Customer violates the Product usage restrictions or if any undisputed sum payable under this Agreement is past due for longer than thirty (30) days. Any use of the Products in breach of this Agreement or the Documentation, that in Company’s reasonable judgment threatens the security, integrity or availability of the Product, may result in immediate suspension of Customer’s access to the Product. Company shall use commercially reasonable efforts to provide Customer with prior written notice of any planned suspension and an opportunity to remedy such violation or threat before the suspension occurs.
9.3. Termination for Insolvency. Either party may terminate this Agreement immediately upon written notice to the other party if the other party has a receiver appointed, or an assignee for the benefit of creditors or in the event of any insolvency or inability to pay debts as they become due by the other party, except as may be prohibited by applicable laws.
9.4. Effect of Termination. Expiration or termination of this Agreement will not relieve any party of its obligations to pay any amounts accrued or otherwise owed under this Agreement. Upon termination or non-renewal of this Agreement, all usage or access rights granted to Customer hereunder shall terminate and Customer shall not use the Products, and Company shall have no further obligation to provide the Products. Customer must remove any Customer Materials in the Platform Services prior to termination. In addition, no later than ten (10) calendar days after termination or non-renewal, each party shall return or certify destruction of all Confidential Information in its possession or control to the other party, if so requested. Any provision that is intended to continue after termination shall not be affected by the termination of this Agreement.
10.1. Notices. All notices shall be in writing and addressed to the office location of the parties as indicated for the order or to such address as either party may later provide in writing to the other party by certified or registered mail, courier or email or through Customer’s account.
10.2. Publicity. For marketing and promotional purposes, Customer agrees that Company may identify Customer in Company’s promotional, marketing or other materials and refer to Customer by name, trade name and trademark as applicable. Customer hereby grants to Company a license to use Customer’s name and applicable trademarks in accordance with this section. Customer may withdraw its consent and permission under this section at any time by notifying Company in writing via the email address provided to Customer or its Customer’s account.
10.3. Injunctive Relief. Customer acknowledges and agrees that any breach of its obligations with respect to Confidential Information and IP Rights may cause substantial harm to Company that could not be remedied by payment of damages alone. Accordingly, Company shall be entitled, in addition to any other rights or remedies, to seek injunctive relief in any jurisdiction where damage may occur.
10.4. Exports. Customer shall comply with all applicable export trade control laws, rules, and regulations with respect to its use of the Product, including but not limited to International Traffic in Arms Regulations of the U.S. State Department, the Export Administration Regulations promulgated by the U.S. Department of Commerce or sanction regulations of U.S. Treasury Department and shall comply with all restrictions imposed pursuant thereto with respect to complying with prohibitions of trade or transactions with persons or entities whom or which may be sanctioned or blocked by virtue of being subject of an order, directive, proclamation, regulation or otherwise listed as a blocked, barred, suspended, sanctioned or prohibited person identified by such agencies and departments. Without limiting the foregoing, Customer shall not export or re-export all or any part of the Product without Company’s prior written consent and license as may be required by the export trade control laws of the U.S. Customer agrees to notify Company promptly if Customer or any User may be in non-compliance with this section.
10.5. No Waiver. Company’s failure or delay in exercising any of its rights shall not constitute a waiver of such rights unless expressly waived in writing.
10.6. Relationship. The parties are independent contractors, and nothing contained in this Agreement shall be construed to constitute as agents, partners, joint ventures, or otherwise as participants in a joint undertaking, that would give a party the express or implied right, power or authority to create any duty or obligation of the other party.
10.7. Force Majeure. Neither party shall be deemed to be in breach of any provision of this Agreement for any failure (except for a failure to pay Fees) resulting from acts or events beyond that party’s reasonable control, including but not limited to (i) severe weather, power failure, fires, explosions, earthquakes, drought, tidal waves and floods, (ii) war, hostilities, invasion, act of foreign enemies, mobilization, requisition, or embargo, (iii) rebellion, revolution, insurrection, or military or usurped power, or civil war, (iv) contamination by radio-activity from any nuclear fuel, or from any nuclear waste from the combustion of nuclear fuel, radio-active toxic explosive, or other hazardous properties of any explosive nuclear assembly or nuclear component of such assembly, (v) diminishment of power of telecommunications or data networks or services, or refusal of a license by a government agency, (vi) riot, commotion, strikes, go slows, lock outs or disorder, unless solely restricted to employees of Company or its subcontractors. If any of such event has occurred, the non-performing party shall (i) immediately notify the other party in writing describing at a reasonable level of detail the circumstances causing such default or delay and (b) be excused from further performance or observance of is affected obligation(s) for as long as such circumstances prevail and such party continues to use reasonable commercial efforts to recommence performance or observance as soon as possible and to whatever extent possible without delay.
10.8. Assignment. Neither this Agreement nor any rights granted hereunder may be assigned by Customer, without the prior written consent of Company, which consent shall not be unreasonably withheld or delayed. The right of assignment granted herein shall apply only to the business of Customer as it existed prior to such assignment or sale. This Agreement shall inure to the benefit of the parties’ permitted successors and assigns.
10.9. Severability. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be interpreted in a manner that best reflects the parties’ intentions, and the remaining provisions of this Agreement will remain in full force and effect.
10.10. Entire Agreement. This Agreement constitutes the entire agreement between Company and Customer regarding the subject matter hereof and supersedes all prior oral and written communications and shall be incorporated by way of reference.
10.11. Law and Jurisdiction. For Tricentis GmbH and Neotys Software Products Pvt. Ltd.: This Agreement will be governed by and construed in accordance with the laws of Republic of Austria, without regard to its conflict of law principles. Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Pre-Release Product will be subject to the exclusive jurisdiction of the courts competent for the Inner District of Vienna, Austria. For Neotys S.A.S: This Agreement will be governed by and construed in accordance with the laws of France, without regard to its conflict of law principles. Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Pre-Release Product will be subject to the exclusive jurisdiction of the courts competent in Paris, France. For Tricentis APAC Pty. Ltd.: This Agreement will be governed by and construed in accordance with the laws of Australia, without regard to its conflict of law principles. Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Pre-Release Product will be subject to the exclusive jurisdiction of the courts located in Sydney, New South Wales. For Tricentis USA Corp. and Neotys USA Inc.: This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to its conflict of law principles. Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Pre-Release Product will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California. For Tricentis SGP Pte. Ltd: This Agreement will be governed by and construed in accordance with the laws of Singapore, without regard to its conflict of law principles. Any disputes, actions, claims, or causes of action arising out of or in connection with this Agreement or the Pre-Release Product will be subject to the exclusive jurisdiction of the courts located in Singapore. The parties hereby disclaim and exclude the application hereto of the United Nations Convention on Contracts for the International Sale of Goods. This Agreement excludes the United Nations Convention on Contracts for the International Sale of Goods. Notwithstanding the foregoing, Company may bring a claim for equitable relief in any court with proper jurisdiction.
10.12. Subsequent Arbitration. Only if this Agreement is applicable by parties located in different countries and such countries have no bilateral treaty regarding litigation and enforcement in place, each party consents to all disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules and such arbitration shall be final binding and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The place of arbitration shall be where the Company as specified in above is located, and the arbitration language shall be English.
10.13. Ultimate U.S. Federal Government Provisions. If applicable, Company will provide the Product, including related Documentation and technology for ultimate federal government end use solely in accordance with the following: government technical data and software rights related to the Product include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Company to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement pursuant to the provisions and guidance set forth in FAR 27.405.3.
10.14. Australian Consumer Law. If applicable, nothing in this Agreement excludes, restricts or modifies the application of the Australian Consumer Law as set out in Schedule 2 of the Competition and Consumer Act 2010 of Australia (“ACL”). To the fullest extent permitted by law, Company‘s liability for any breach of a consumer guarantee implied by the ACL (and which cannot be excluded) shall be limited to any one or more of the following (as determined by Company in its absolute discretion) (i) in the case of goods, the replacement repair or payment of the cost of replacement or repair of the goods, and (ii) in the case of services, supplying the services again or payment of the cost of having the services supplied again or for major failures with the service, Customer is entitled to cancel this Agreement and to a refund for the unused portion, or to compensation for its reduced value. Customer is also entitled to be compensated for any other reasonably foreseeable loss or damage. If the failure does not amount to a major failure, Customer is entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel this Agreement and obtain a refund for the unused portion of services.
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