General Terms and Conditions
Version: February 1st, 2019
1 SCOPE AND DEFINITION
1.1 Scope. These Xaleon General Terms and Conditions shall apply to the licensing of the Xaleon Software as well as the provision of the provided Services to Customer, as ordered by Customer in the Order.
“Acceptance Date” means the date on which Customer signs the Order.
“Account” means an account enabling a person to access and use the Hosted Services, including both administrator accounts and user accounts;
“Agreement” means these General Terms and Conditions, the Order executed by the parties, Order Processing Contract and any schedule and appendices thereto;
“Xaleon Software” means any Xaleon software with respect to the respective Order.
“Company” means the entity identified in the Order, which provides the Products in accordance with the terms of this Agreement.
“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, 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.
“Customer Data” means all data, works and materials:
- uploaded to or stored on the Platform by the Customer;
- transmitted by the Platform at the instigation of the Customer;
- generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);
- “Documentation” means the documentation for the Hosted Services produced by Xaleon and delivered or made available by Xaleon to the Customer (https://docs.xaleon.com);
“Deliverable” means any work or material (including software, reports, test cases, or flow charts) delivered to Customer pursuant to this Agreement as described in or pursuant to the Order.
“Fees” means the following amounts:
- the amounts specified in the Order; or
- such amounts as agreed in writing by the parties from time to time.
“Hosted Services” means Xaleon, as specified in the Order, will be made available by Xaleon to the Customer as a service via the internet in accordance with this Agreement;
“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, copyrights registrations and applications thereof; (iv) trademarks and service marks, (v) industrial designs, (vi) all rights in databases and data collections; (vii) all moral and economic rights of authors and inventors, however denominated, (viii) rights to apply for, file for, certify, register, record, or perfect any of the foregoing, and (ix) any similar or equivalent rights to any of the foregoing.
“Order” means the order form, or any other document as agreed by the parties, specifying the options chosen by Customer for the Products as well as Fees and additional conditions.
“Platform” means Xaleon;
“Platform Services” mean any remote on-demand application made available by Company to Customer as identified in the Order.
“Products” mean collectively the Software, the Platform Services, Services and/or Deliverables provided by Company to Customer as identified in the Order.
”(Platform) Services” means any services that Xaleon provides to the Customer, or has an obligation to provide to the Customer, specified in an Order;
“Support Services” means support in connection with the Platform and/or the Hosted Services under the respective support plan indicated in the Order;
“Term” means the term of this Agreement, commencing in accordance with section 6.1;
2 OWNERSHIP, INTELLECTUAL PROPERTY RIGHTS
2.1 Ownership. Company retains all rights, title, and interest, including all IP Rights, in and to the Products and Customer shall retain all rights, title, and interest in and to the Customer Systems and Customer Materials. 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 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
3 HOSTED SERVICES & PRODUCT USAGE
3.1 Usage Rights. Subject to payment by Customer of the Fees, Company hereby grants to Customer a limited, non-exclusive, nontransferable, non-sublicensable license or subscription for use of the Products in accordance with this Agreement and the Documentation during the Term, solely for Customer’s internal business purposes. In addition, and unless otherwise specified in the Order, (i) in case of Software and/or Platform Services, Customer may install the Software on its internal Customer System , and/or (ii) Company shall perform the Services, and shall provide the Deliverables as described in the Order on a time and material basis.
3.2 Delivery. Company will deliver the Software and platform services according to the agreement or license type:
3.2.1 Hosted Service. The Company will deliver and execute the Software and platform services electronically via the Internet. The Customer shall be granted access to http://app.xaleon.com immediately upon conclusion of this Agreement and shall be responsible for its registration and installation. Any activation of additionally agreed features will be carried out within three working days of the conclusion of this agreement.
184.108.40.206 Xaleon shall use all reasonable endeavors to maintain the availability of the Hosted Services to the Customer but does not guarantee 100% availability.
220.127.116.11 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement: (i) a Force Majeure Event; (ii) a fault or failure of the internet or any public telecommunications network; (iii) a fault or failure of the Customer’s computer systems or networks; (iv) any breach by the Customer of this Agreement; or (v) scheduled maintenance carried out in accordance with this Agreement.
3.2.2 On-Premise Installation. The installation as an on-premise solution is to be carried out by the Company within 3 weeks of the conclusion of this agreement. Unless otherwise agreed, the Customer shall provide the Company with secure VPN access to the server system for the duration of the installation so that the Company can perform remote installation.
18.104.22.168 Sicherungskopie. Except for maintaining a single archival copy of the Software for backup purposes only, Customer shall not make copies of the Software.
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 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 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 Support. Subject to the payment by Customer of the Fees, Company shall provide Customer with Support in respect for the Software and/or the Platform Services for the (Support) Term in accordance with applicable support description and any applicable service level agreement as indicated in the Order. Company may also access Customer’s Platform Services account or instance or request access to the Software in order to respond to support requests.
3.5 Usage Scope. Only Customer and its Users may access and use the Products and Customer is responsible for all Users’ compliance with this Agreement and use of the Products. All use of the Products by Customer and its Users must be within the authorized scope of use set forth in this Agreement. Without limiting the foregoing, the Software and/or Platform Service may not be simultaneously accessed or used by Customer, by more than the quantities purchased by Customer as set forth in the applicable Order.
3.6 Hosting Platform Provider. In order to provide the Platform Services, Company may use 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.
4.1 Payment. Except as otherwise set forth in the Order, Fees are due and payable thirty (30) days after Customer’s receipt of an undisputed invoice. Customer shall provide Company with accurate billing and contact information and notify Company of any changes to such information. All Fees are non-refundable and non-cancellable except as otherwise set forth herein.
4.2 Fee Modification. The Fees are in consideration of the current version of the Product 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 of the Order or Support, Company reserves the right to modify the Fees payable by Customer upon sixty (60) days’ prior 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 maximum 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. Customer to whom the deduction or withholding applies, shall pay to the relevant taxation authority, or other authorities, as appropriate, the full 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.
4.5 Expenses. Customer shall reimburse Company for actual travel and living expenses of its personnel engaged in the performance of the Services at locations other than Company facilities, together with other out-of-pocket expenses incurred in connection with performance of the Service. Company shall adhere to any travel policy reasonably promulgated by Customer.
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. Warranty. Company warrants to Customer that (i) the Software will conform in all material respects to the Documentation in effect on the Acceptance Date during the first six (6) months of this Agreement, provided the Software is used in accordance with the Documentation, (ii) the Platform Services will conform in all material respects to the Documentation in effect during the Term, (iii) the Services will be performed in a professional and workmanlike manner, and that the Deliverables will conform in all material respects to the Documentation or specifications set forth in the Order for a period of ninety (90) days after the completion of the Services and delivery of the Deliverables, provided that the Deliverables are used in accordance with the applicable Documentation. 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, © 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 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, 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 of the Product within the warranty period and Company shall verify the existence of such non-conformity before Company proceeds to correct the non-conformity. For any breach of the warranty in 5.2, Customer’s sole and exclusive remedy will be as described in this section.
5.4. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN 5.1, 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, ORAL OR WRITTEN, INCLUDING WARRANTIES: ARISING UNDER STATUTE, USAGE, TRADE CUSTOM, ACCURACY, OF TITLE, NON-INFRINGEMENT, USAGE OF TRADE, COURSE OF DEALING, COURSE OF PERFORMANCE OR OTHERWISE WITH RESPECT TO THE PRODUCTS, AND COMPANY DISCLAIMS ANY AND ALL WARRANTIES, REPRESENTATIONS, OR CONDITIONS RELATING THERETO INCLUDING, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY INTENDED OR PARTICULAR PURPOSE. COMPANY DOES NOT GUARANTEE THAT THE PRODUCT WILL BE FREE OF DEFECTS, RUN ERROR-FREE OR UNINTERRUPTED OR MEET CUSTOMER’S REQUIREMENTS.
5.5. LIABILITY. EXCEPT FOR A BREACH OF SECTIONS 3, A BREACH OF SECTION 7, AMOUNTS OWED BY CUSTOMER UNDER ANY ORDER, OR IN THE EVENT OF DAMAGE CAUSED INTENTIONALLY OR BY GROSS NEGLIGENCE OR RESULTING IN DEATH, BODILY INJURY OR DAMAGE TO HEALTH, NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, REGARDLESS OF THE FORM OR CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT, OR THE NUMBER OF CLAIMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW (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 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 PURSUANT TO THE ORDER THAT IS THE SUBJECT OF SUCH CLAIM WITHIN TWELVE (12) MONTHS PRECEEDING THE DATE OF THE CLAIM. 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 TERM AND TERMINATION
6.1 Term. This Agreement shall come into force upon the Acceptance Date and remain in effect during the term of any unexpired Order, unless terminated earlier in writing pursuant to the terms of this section. For the avoidance of doubt, upon the renewal of an Order, this Agreement shall be applicable to the parties to the extent of any variations set out in the Order.
6.2 Termination for Convenience. Upon expiration of the Term of the Product or Support, the Term shall automatically renew for successive periods of twelve (12) months each, unless either party cancels such renewal by notifying the other party at least sixty (60) days prior to the expiration of the then-current term, unless otherwise agreed in the Order.
6.3 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 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 restrictions set forth in section 3 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.
6.4 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 bankruptcy laws.
6.5 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 licenses or rights granted to Customer hereunder shall terminate and Customer shall not use the Product, and Xaleon shall have no further obligation to provide the Product. Upon termination of an Order for Services, Customer shall pay Xaleon any unpaid fees and expenses incurred on or before the termination date on a time and material basis, based on the rates agreed in the Order. In addition, no later than ten (10) calendar days after termination or non-renewal, each party shall return all Confidential Information in its possession or control to the other party, or, destroy, and certify the destruction of, the same. Any provision that is intended to continue after termination shall not be affected by the termination of this Agreement.
7 CONFIDENTIAL INFORMATION
7.1 Confidentiality Obligations. 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, agents, or representatives (collectively “Representatives”) except those 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 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 and/or Recipient 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 as defined under and in accordance with any applicable data privacy laws.
8.2. Data Collection. Customer shall not submit and Company shall not collect any personal identifiable data of Customers’ employees, clients or any other related natural person, unless necessary to fulfill each parties’ contractual rights and obligations under this Agreement. Customer shall (i) not share or transmit any personal identifiable data to Company unless strictly necessary and/or (ii) limit any necessary transfer of personal identifiable data to Company to the utmost minimum required for the performance of this Agreement. In the event that Customer intends to use and/or transmit personal identifiable data to Company for use within the Product, Customer shall inform Company with written notice prior to using and/or transmitting such personal identifiable data to Company and Customer shall take all necessary measures that the parties are compliant with applicable data privacy laws.
8.3. 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 any and 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.
8.4. Security. 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.
9.1 Notices. All notices shall be in writing and addressed to the registered office of the parties as set out in 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 by email.
9.2 Publicity. For sole marketing and promotional purposes, Customer agrees that Xaleon may identify Customer as a Xaleon customer in Xaleon’ promotional, marketing or other materials and refer to Customer by name, trade name and trademark as applicable. Customer hereby grants Xaleon a license to use Customer’s name and applicable trademarks in accordance with this section.
9.3 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
9.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
9.5 This Agreement shall be governed by and construed in accordance with Austrian law.
9.6 The courts of Austria shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
9.7 Messenger Marketing Suite
9.7.1 This section shall describe the relationship and dependency of Xaleon to Facebook.
9.7.2 Between Xaleon and Facebook there are no contractual relationships regarding the supply of services on the part of Xaleon to the Customer. Therefore, there’s an existing dependency of Xaleon to Facebook to be able to provide services to the Customer. Changes of Facebook on Facebook Messenger can affect or even avoid the services of Xaleon. Xaleon has no influence on the design of Facebook’s services. For that reason, a situation can occur, where Xaleon can’t fulfill its services to the Customer partially or even entirely. This means that a situation may occur in which Xaleon is able provide its services to the Customer only to a limited extent or not at all. In such circumstances, Xaleon and the Customer each has an exceptional right to terminate.
9.7.3 The use of the Messenger Marketing Suite is also governed by the Facebook Platform Policies (https://developers.facebook.com/policy) and Facebook Commerce Product Merchant Agreement (https://www.facebook.com/legal/commerce_product_merchant_agreement), which are hereby incorporated by reference and are a part of these Terms. The Customer is solely responsible and liable for complying with Facebook’s policies. By using Xaleon the Customer agrees to all of these Terms.