A. This agreement shall be entered into between Dotphoton AG, Nordstrasse 3, 6300 Zug (the "Dotphoton") and any individual or legal entity (the "Customer"; collectively with Dotphoton the "Parties" and each individually a "Party") that agrees to the terms and conditions outlined in this agreement by using or otherwise accessing the Services.
B. The Customer plans to License the Services from Dotphoton, and Dotphoton plans to License the Services to the Customer, all under and in accordance with the terms and conditions outlined in this agreement (the"Agreement").
C. In this Agreement, the Parties wish to determine their respective rights and obligations in relation to the Licensing of the Platform, Services and any related content provided by Dotphoton, as well as any amendment or updates to the terms.
Based on the foregoing, the Parties agree as follows:
Unless otherwise specifically provided in this Agreement, capitalized terms used in this Agreement shall have the meaning ascribed to them in Annex 1.
2. Scope of the Services
2.1. Subject to the terms and conditions of this Agreement, Dotphoton shall grant to the Customer the right to use the Platform, as described in the Order Form ("Platform Services"), for the duration of the Subscription Term pursuant to the terms and conditions of this Agreement and the service level agreement attached hereto as Annex 2.1b) (the "Service Level Agreement").
2.2. Dotphoton shall further provide, during the duration of the Subscription Term and on a commercially reasonable efforts basis, services to support and maintain the Platform Services (the "Support Services") to the Customer under the terms and conditions of this Agreement and the Service Level Agreement.
2.3. Dotphoton may include various open-source software components in or with the Software (the "Open-Source Software"), each of it is owned by a third party and is subject to its own applicable license terms and conditions. A current list of Open-Source Software can be accessed at www.dotphoton.com. The Open-Source Software is provided on an"as-is" basis, and Dotphoton makes no expressed or implied warranties of any kind with respect thereto and assumes no liability for any damages regarding the use or operation of any such Open-Source Software.
3. Grant of License
3.1. Subject to the terms and conditions of this Agreement, Dotphoton grants to the Customer a worldwide, non-exclusive, non-transferable, non-assignable, non-sublicensable license during the Subscription Term of this Agreement to access and use the Platform Services in accordance with the terms and conditions outlined in this Agreement (the "License"). Any further use is prohibited.
3.2. If Affiliates of the Customer are explicitly mentioned within the Order Form, under the terms and conditions of this Agreement, the Customer is entitled to sublicense the use of the Platform Services to its Affiliates mentioned in the Order Form, provided that the Customer is responsible for ensuring that any and all Affiliates agree to and uphold the terms and conditions of this Agreement and is liable for any breach thereof by an Affiliate.
3.3. The Platform Services may contain third-party software and/or may be distributed together with third-party software that maybe subject to other terms and conditions. Such third-party software and the applicable licenses are described at www.dotphoton.com.
3.4. The Customer shall not use the Platform Services on the behalf of, or for the benefit of, third parties, nor allow any third party to use (except as pursuant to Section 3.2 of this Agreement), rent, lease, lend, sublicense, grant rights to, assign, or transfer the Platform Services. Further the Customer shall not provide use of the Platform Services in a computer service business or third-party outsourcing facility.
3.5. The Services are not designed, manufactured or intended for the use as online control equipment in hazardous environments requiring redundant fail safe performance, in particular in regards to, but not limited to, the operation of aircraft navigation or communication systems, air traffic control, of direct life supporting machines, of weapon systems, of nuclear, chemical or biological manufacturing facilities, or of any other production site in which a failure of the Services could lead directly or indirectly to death, personal injury or severe physical or environmental damage. The use of the Services for such purposes is not permitted.
4. Customer Obligations and Responsibilities
4.1. The Customer shall (i) provide Dotphoton with all the necessary co-operation in relation to this Agreement and access to such information as may be required by Dotphoton in order to provide the Services; (ii) inform Dotphoton of any security issue relating to the Services as soon as possible but no later than twenty-four hours upon knowledge of said security issue; (iii) upgrade the software in accordance with Dotphoton’s instructions and within the applicable time periods; (iv) deploy security updates in accordance with Dotphoton's instructions as soon as possible; (v) comply with Dotphoton’s LicensePolicy and all applicable laws and regulations in regards to its activities under this Agreement; (vi) be responsible for Authorized Users compliance with this Agreement; (vii) ensure that its network and systems comply with the relevant specifications which may be provided by Dotphoton from time to time; and (viii) be solely responsible for procuring and maintaining its network connections and telecommunications links from the Customer's systems to Dotphoton's data centers; (ix) be solely responsible for the accuracy, quality, and legality of any and all third-party data and Customer materials; (x) be solely responsible for uploading third-party data and making appropriate backups of such data; and (xi) be solely responsible to obtain any consents required by law and/or provide required privacy notices to any party whose personal data the Customer uses in connection with the Platform.
4.2. Before making any notices with regard to a deviation of the Availability from the Service Level(s) pursuant to the Service Level Agreement, the Customer shall adhere to the following protocol (the "Analysis Protocol"): (i) the Customer shall check in at www.dotphoton.com whether the Services are actually affected; (ii) if the Services are shown as fully or sufficiently functional, the Customer shall conduct a full analysis of the root cause of the disruption and notify Dotphoton of the findings (by email to support@dotphoton.com); (iii) if, after the root cause analysis, the Customer is still of the opinion that the Availability is affected by Dotphoton's performance, the Customer has the duty to notify Dotphoton and describe the error pattern insufficient detail (by email to support@dotphoton.com).
If the aforementioned Analysis Protocol is not adhered to, the error shall be deemed to be caused by a root cause for which Dotphoton is not responsible. In particular, the Service Level(s)under the Service Level Agreement shall not be deemed to be negatively affected.
4.3. In the event the Customer does not deploy security updates according to Section 4.1, Dotphoton may either (i) deploy such updates of its own accord under the full exclusion of any liability for any related damages, including but not limited to loss of data, or (ii) suspend the Platform Services according to Section 6.
4.4. In relation to the Authorized Users, the Customer shall ensure that (i) the maximum number of Admins which the Customer authorizes access and use of the Dashboard shall not exceed the number described in the Order Form; (ii) the Customer shall not permit or suffer any Admin account to be used by more than one individual Authorized User; and (iii) each Authorized User shall keep a secure password for their use of the Services, the required password shall be changed regularly and each Authorized User shall be required to keep their password confidential.
4.5. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that (i) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; (ii) facilitates illegal activity; (iii) depicts sexually explicit images; (iv) promotes unlawful violence; (v) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or (vi) in a manner that is otherwise illegal or causes damage or injury to any person or property; and Dotphoton reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customers access to the Services which may include removal of the material that breaches the provision of this clause.
4.6. The Customer shall not (i) make the Platform or any Service available to, or use the Platform or any Service for the benefit of, anyone other than the Customer unless otherwise stipulated in this Agreement, (ii) sell, resell, license, sublicense, distribute, rent or lease the Platform or any Service, or include the Platform or any Service in an outsourcing offer, (iii) permit direct or indirect access to or use of the Platform or any Service or content in a way that circumvents a contractual usage limit, (iv) copy the Platform or Service or any part, feature, function or user interface thereof, (v) frame or mirror any part of the Platform or any Service other than as permitted in the Documentation, (vi) access the Platform or any Service in order to build a competitive product or service, or (vii) reverse engineer the Platform or any Service (to the extent such restriction is permitted by law).
4.7. The Customer shall not use the Platform Services, or perform or allow the transfer of, export, or re-export of the Platform Services, in violation of any applicable export control laws, regulations or sanctions administered by any governmental authority. This Agreement may involve items and information subject to the U.S. government's International Traffic in Arms Regulations (ITAR) or Export Administration Regulations (EAR). If so, without proper authorization by the U.S. government or any other applicable or relevant governmental or regulatory body, the Customer will not carry any action listed in this Section 4.7. By using the Platform and Documentation, the Customer affirms that neither it nor its Affiliates are:
a) included on any sanctions-related list of designated persons maintained by the U.S. Department of Treasury's Office ofForeign Assets Control, the U.S. Department of State, the U.S. Department of Commerce, the European Union, His Majesty's Treasury of the United Kingdom, theUnited Nations, or any other applicable governmental authority; or
b) organized under the laws of, residing in, or owned/controlled by, directly or indirectly, individuals or entities in countries or regions subject to comprehensive sanctions (currently Belarus, Cuba, Iran, North Korea, Russia, Syria, the Crimea region of Ukraine, and the Donetsk, Kherson, Luhansk, and Zaporizhzhia regions of Ukraine).
The Customer must immediately notify Dotphoton of any actual or potential non-compliance with these applicable control laws, regulations or sanctions, including any unauthorized use or sale by third parties. Any violation of these terms will be considered a non-remediable material breach of this Agreement.
5. Obligations of Dotphoton
The scope of Section 2 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Dotphoton's instructions, or modification or alteration of the Services by any party other than Dotphoton. If the Services do not conform with the foregoing undertaking, Dotphoton will, at its expense, use commercially reasonable efforts to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer 's sole and exclusive remedy for any breach of the undertaking set out in Section 2. Notwithstanding the foregoing, Dotphoton (i) does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer's requirements; (ii) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities; (iii) does not guarantee the Services if the Customer exceeds the values defined in the Order Form; and (iv) may change the infrastructure to provide the Services from time to time which may require Dotphoton to interrupt the Platform and Services; apart from emergencies, Dotphoton will inform the Customer of such a change duly in advance as further defined in the Documentation; Dotphoton is not obliged to continue providing the Services during any such interruption.
6. Temporary Suspension
6.1. Dotphoton may – upon prior notice to the Customer – immediately suspend the Customer's or any Authorized User's right to access or use any portion or all of the Services if Dotphoton determines the Customer's or an Authorized User's use of or registration for the Services (a) poses a security risk to the Services or any third party, (b) may adversely impact the Services or the systems or content of any other Dotphoton customer, (c) may subject Dotphoton, its Affiliates, or any third party to liability, or (d) may be fraudulent; (e) the Customer is, or any Authorized User is, in breach of this Agreement, including if the Customer is delinquent on its payment obligations for more than fifteen Business Days; or (f) the Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
6.2. If Dotphoton suspends the Customer's right to access or use of any portion or to all of the Services, the Customer shall remain responsible for all Subscription Fees. Dotphoton will not unilaterally restrict access of the Customer to any compressed Customer Data as a result of the Customer's suspension for three months after the date of the suspension. During that period, Customer may read the compressed Customer Data, and decompress the Customer Data via the Services.
6.3. Dotphoton's right to suspend the Customer's orany Authorized User's right to access or use of the Services is in addition to Dotphoton'sright to terminate this Agreement pursuant to Section 17.2.
7. Payment Terms
7.1. The Customer shall pay the Subscription Fees described in the Order Form to Dotphoton in accordance with this Section 7. Such Subscription Fees shall be non-returnable and non-refundable.
7.2. The Subscription Fees shall be invoiced monthly. Each invoice shall be due thirty days after its dispatch via email to the B-PoC (the "Due Date"). The Customer may not set off any potential claims against the invoiced fees. On expiry of the Due Date the Customer will be automatically in default (without any formal reminder). Interest shall accrue on such due amounts at an annual rate equal to five percent commencing on the Due Date and continuing until fully paid.
7.3. Any fee specified in this Agreement or in any promotional document, in particular any description on Dotphoton's official internet platform, does not include any tax (e.g. value-added tax), custom duties or similar taxes and charges that may be assessed directly or indirectly by governmental authorities of any jurisdiction with regard to the granted license and/or the provision of the Services.
7.4. Dotphoton reserves the right to change the Subscription Fees under the terms of this Agreement at the end of the Initial Term and each Renewal Period (as defined in Section 17.1) upon thirty days prior notice to the Customer.
7.5. If the Customer is of the opinion that Dotphoton has wrongfully charged for Services under this Agreement, the Customer must contact Dotphoton via support@dotphoton.com no later than sixty days after the billing date on the incorrect invoice in question, in order to receive an adjustment or credit.
8. Warranties and Remedies
8.1. Dotphoton warrants to the Customer that (i) the Service will perform substantially as described in the Documentation and (ii) any Service provided under this Agreement will be performed with reasonable skill and care and in a professional manner consistent with normal industry practices and in accordance with the Service Level Agreement. Non-substantial variations of the Service from the Documentation remain reserved. Dotphoton does not warrant that the performance of the Service will be uninterrupted or error-free. Any non-conformance which is caused by: (i) the use of the Platform or Services contrary to the Documentation and/or instructions of Dotphoton; or (ii) anyEvaluation Licenses and Free Edition Licenses, are excluded from the warranty provided according to this Section 8.1.
8.2. If the Platform does not perform as warranted in Section 8.1, subject to compulsory law, the Customer's sole and exclusive right and remedy shall be to (a) demand repair or replacement of the non-conforming Platform or (b) terminate this Agreement, in the event of a material breach by Dotphoton, pursuant to Section 17.2. If a Service was not rendered as warranted in Section 8.1, the Customer's rights and remedies set forth in the Service Level Agreement shall apply exclusively.
8.3. Dotphoton makes no, and herby disclaims to the fullest extent permitted by law, any and all other, (a) representations and warranties with respect to the Services and the Platform, explicit or implied, oral or written, including, without limitation, any warranties of merchantability, eligibility for a particular purpose and non-infringement, or(b) remedies, except as expressly set forth above. FURTHER, Dotphoton DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE PLATFORM WILL OPERATE PROPERLY IN COMBINATION WITH OTHER FUNCTIONALITY, CORES, SOFTWARE OR PROTOCOLS, OR THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS OR DEFECTS IN THE PLATFORM ARE CAPABLE OF BEING CORRECTED. CUSTOMER ACKNOWLEDGES THAT USE OF THE PLATFORM IN COMBINATION WITH OTHER FUNCTIONALITY, CORES, SOFTWARE OR PROTOCOLS MAY REQUIRE LICENSES FROM THIRD PARTIES AND CUSTOMER ACCEPTS SOLE RESPONSIBILITY FOR OBTAINING SUCH LICENCES.
8.4. THE PLATFORM IS NOT DESIGNED OR INTENDED TO BE FAILSAFE, OR FOR USE IN ANY APPLICATION REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN LIFE-SUPPORT OR SAFETY DEVICES OR SYSTEMS, CLASS III MEDICAL DEVICES, NUCLEAR FACILITIES, APPLICATIONS RELATED TO THE DEPLOYMENT OF AIRBAGS, OR ANY OTHER APPLICATIONS THAT COULD LEAD TO DEATH,PERSONAL INJURY OR SEVERE PROPERTY OR ENVIRONMENTAL DAMAGE (INDIVIDUALLY AND COLLECTIVELY, CRITICAL APPLICATIONS). FURTHERMORE, THE PLATFORM IS NOT DESIGNED OR INTENDED FOR USE IN ANY APPLICATIONS THAT AFFECT CONTROL OF A VEHICLE OR AIRCRAFT, UNLESS THERE IS A FAIL-SAFE OR REDUNDANCY FEATURE AND A WARNING SIGNAL UPON FAILURE TO THE OPERATOR. CUSTOMER AGREES, PRIOR TO USING OR DISTRIBUTING ANY SYSTEMS THAT INCORPORATE THE PLATFORM, TO THOROUGHLY TEST THE SAME FOR SAFETY PURPOSES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER ASSUMES THE SOLE RISK AND LIABILITY OF ANY USE OF THE PLATFORM IN CRITICAL APPLICATIONS.
8.5. Under no circumstances shall Dotphoton be obliged to remedy a defect and/or be liable in any form, if (i) the defect has not been reported in accordance with the Service Level Agreement, or (ii) the Customer is not able to reproduce the defect using a standard version of theSoftware which is officially supported by Dotphoton at that time and operated within the Platform.
9. Liability
9.1. Subject to Section 9.2, Dotphoton, its Affiliates, officers, directors, employees, agents, consultants or suppliers shall have no liability for any direct, indirect damages, or losses suffered in connection with this Agreement. Dotphoton shall further not be held liable for any loss of use, interruption of business, loss of goodwill, lost profits, loss or corruption of data, loss of anticipating savings, or any indirect, special, incidental, or consequential damages of any kind regardless of the form of the claim, whether in contract, equity, tort (including negligence), product liability, or otherwise, even if the Customer has been advised of the possibility of such damages.
9.2. The exclusions and limitation of liability set out in Section 9.1 do not apply to: (i) liability arising from death or injury to persons, willful intent or gross negligence, or (ii) any other liability which cannot be excluded or limited by law.
9.3. The Customer acknowledges that, in entering into this Agreement, the Customer has not relied upon any representations (whether written or oral) of any kind or of any person other than those expressly set out in this Agreement and (if they have relied on any representations, whether written or oral, not expressly set out in this Agreement) that the Customer shall have no remedy in respect of such representations and (in either case) Dotphoton shall in any circumstances hold no liability other than in accordance with the express terms of this Agreement.
9.4. In no event (other than set forth under Section 9.2) shall the entire liability of Dotphoton or its licensors in connection with this Agreement exceed the Subscription Fees paid by the Customer under this Agreement during the (up to) twelve months of the Subscription Term immediately preceding the events giving rise to such claim.
10. Indemnification
Customer shall indemnify, defend, and hold harmless Dotphoton and its Affiliates, and each of Dotphoton's and its Affiliates' respective officers, directors, employees, agents, successors, and assigns from and against all losses arising out of or resulting from any claim, suit, action, or proceeding by any third party relating to: (i) any breach by Customer of any obligations, responsibilities, and covenants under this Agreement; or (ii) any negligence or willful misconduct of Customer or any of its Affiliates in connection with this Agreement.
11. Force Majeure
11.1. Neither Party shall be liable to the other Party for any default, to the extent the default is wholly or materially caused, whether directly or indirectly, by circumstances beyond the Party's reasonable control, such as fire, flood, other natural disasters, general strike, governmental action, embargos, epidemics, pandemics or communication line failures (the "Force Majeure"), provided the affected Party notifies the other Party in writing of the Force Majeure event within a reasonable time after its occurrence.
11.2. In the event the affected Party's delay or non-performance as a result of Force Majeure continues for a period of more than sixty days, either Party shall have the right to terminate this Agreement with immediate effect.
12. Intellectual Property Rights
12.1. The Customer acknowledges that all Intellectual Property Rights to the Platform, the Services and the Documentation is owned by Dotphoton and/or the respective licensors. Except as expressly stated herein, this Agreement does not transfer or grant the Customer any Intellectual Property Right in respect of the Platform, Software, Services or Documentation. The Customer will respect the Intellectual Property Rights of Dotphoton and will not violate them in any way.
12.2. Dotphoton will retain all rights to and titles in any copy, modification, enhancement, improvement, development, adaptation of, or derivative work from the Platform, Software, the Services, the Documentation and any other work results created by Dotphoton under or in connection with this Agreement (regardless of whether they were suggested, requested, recommended or required by the Customer; together the "Work Results").
12.3. If any such Work Results were suggested, requested, recommended or required by the Customer, Customer shall irrevocably assign and transfer, and hereby irrevocably assigns and transfers, all rights, titles, and interests in and to any and all Work Results exclusively to Dotphoton. Dotphoton may by means of all current and future processes and systems freely use in any way whatsoever and transfer the Work Results to an unlimited extent. Dotphoton’s rights are in particular unlimited in regard to location, subject, and time.
12.4. Customer shall perform all necessary actions and shall induce their Affiliates and representatives to perform all necessary actions, that may be required for said purposes and to supply documents at first request.
12.5. To the extent that any rights, titles, and interests in and to any Work Results is not capable of being assigned due to mandatory legal provisions, the Customer shall grant, and hereby grants, to Dotphoton an exclusive, worldwide, transferable, unlimited, irrevocable, sublicensable and fully paid-up license to use, alter, edit, further develop, commercially use, exploit, collect the proceeds from the respective collecting societies (Verwertungsgesellschaften) and otherwise use the Work Results in its sole discretion and to the broadest extent admissible by the applicable law.
12.6. The above assignment includes all rights of attribution, paternity, integrity, modification disclosure, destruction and any other rights throughout the world that may be known or referred to as "moral rights", "artist's rights", "droit moral", or the like (the "Moral Rights").To the extent that Moral Rights cannot be assigned, transferred or licensed under applicable law, the Licensee shall waive, and hereby waives, and shall induce their Affiliates and representatives to waive, the exercise of their Moral Rights to the extent permitted by applicable law.
12.7. Dotphoton shall have, for the term of this Agreement, a non-transferable, non-exclusive license to reproduce and display the Customer's logos, trademarks, trade names and similar identifying marks on Dotphoton's official internet platform, in press releases and in other Dotphoton marketing materials as a reference for users of the Services.
13.1. Within thirty Business Days of Dotphoton's request, to be made no more than once every twelve months, the Customer shall provide to Dotphoton a compliance report (the "Report") that includes reasonably requested information by Dotphoton, concerning the Customer's use of the Software. The Report must be signed by the Customer's authorized signatories.
13.2. If (i) Dotphoton does not receive a signed Report within thirty Business Days, or (ii) Dotphoton has reasonable suspicion that the Report is inaccurate or incorrect and that the Customer is not in compliance with the terms of this Agreement, Dotphoton shall have the right, with a minimum of ten days' prior written notice and no more than once every twelve months, to conduct a Software audit during the Customer's normal business hours to verify the Customer's use of the Software, compliance with the terms of this Agreement and payments made to Dotphoton hereunder.
13.3. The Customer shall promptly remit to Dotphoton any shortfall in payment disclosed by such Software audit including any late charges applicable thereto. In addition, if any such audit discloses a shortfall in payment to Dotphoton of more than five percent for any year, upon the written request by Dotphoton, the Customer agrees to cover any and all costs incurred relating to the Software audit.
14. Confidentiality
14.1. The Parties expressly agree that the content of this Agreement and any further data and know-how, of which a Party may become aware during the performance of this Agreement (the "Recipient Party" or "Disclosing Party"),directly, indirectly, in writing, orally, electronically or by any other means, are strictly confidential and/or proprietary in nature (the "Confidential Information"), unless the respective information (i) is in the public domain at the time of disclosure or is legitimately received via a third party; (ii) becomes generally available to the public, other than as a result of disclosure in violation of the terms of this Agreement or a disclosure by the Disclosing Party, triggered by a breach of this confidentiality obligation by theRecipient Party; (iii) is rightfully obtained by the Recipient Party through authorized disclosure by a third party; or (iv) was already in the Recipient Party's legitimate possession, without an obligation of confidentiality, prior to receipt from the Disclosing Party as evidenced by the records of the Recipient Party prior to disclosure.
14.2. The Parties hereby undertake to:
a) keep any Confidential Information strictly classified and not to disclose it to third parties, (i) except to representatives for purposes in accordance with this Agreement with a need for the knowledge of such Confidential Information, and who are bound by confidentiality obligations as restrictive as the ones stipulated herein, and (ii) unless a disclosure is requested by mandatory rules of law, provided that all possible measures to limit the disclosure and to safeguard confidential treatment are taken;
b) use Confidential Information only in accordance with the terms and conditions of this Agreement;
c) use all reasonable care to protect the Disclosing Party's Confidential Information and to prevent any dissemination of such information to the same extent that it protects its own confidential information, which in no event will be less than the safeguards a reasonably prudent business person would exercise in similar circumstances; and
d) immediately notify the Disclosing Party, if the Recipient Party becomes aware of any unauthorized use or disclosure of the Confidential Information.
14.3. Upon written request of the Disclosing Party, unless use or knowledge of Confidential Information is reasonably necessary for the performance of this Agreement, or in the event of termination of this Agreement, the Recipient Party shall promptly destroy or, if expressly requested to do so by the Disclosing Party, return all written, electronically or otherwise stored documents, files and copies thereof containing ConfidentialInformation. This shall include memoranda, notes, and any and all other writings which have been prepared by the Recipient Party and are based on or reflect Confidential Information. Upon request of the Disclosing Party, Recipient Party shall confirm the deletion according to this clause, in writing. Notwithstanding the foregoing, the Recipient Party may keep Confidential Information if requested to do so under mandatory rules of law (e.g. accounting requirements).
14.4. Each Party may disclose Confidential Information to an Affiliate or third parties, provided that such disclosure is necessary for the purpose of performing its obligations under this Agreement and that the Affiliate or third party is bound by obligations as strict as the ones stipulated in this Section 13.
14.5. The above provisions of this Section 13 shall survive termination of this Agreement for as long as such information remains proprietary or confidential.
15. Customer Data
15.1. The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. Dotphoton does not have access to the Customer Data, except for the Metadata.
15.2. Dotphoton may access, collect, and analyze the Metadata to the Customer's use of the Services for the purpose of monitoring performance, improving the Platform and Software, and ensuring compliance with this Agreement. Such Metadata may include (without limitation) information such as usage statistics, system performance data, and other anonymized, non-content-based data that does not reveal or compromise the content of Customer Data.
15.3. If, and to the extent, that the rights in and to the Metadata do not originally lie with Dotphoton, Customer shall irrevocably assign and transfer, and hereby irrevocably assigns and transfers, all such rights in and to such Metadata exclusively to Dotphoton. Dotphoton may by means of all current and future processes and systems freely use in any way whatsoever and transfer the Metadata to an unlimited extent. Dotphoton’s rights are in particular unlimited in regard to location, subject, and time, and Dotphoton is free to use such Metadata to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other services of Dotphoton, and to disclose such Metadata in aggregate or other de-identified form in connection with Dotphoton’s business.
15.4. Dotphoton shall not be responsible for any loss, destruction, alteration or disclosure of any Customer Data that is not Customer’s Metadata. In the event of any loss or damage to Customer’s Metadata, the Customer's sole and exclusive remedy shall be for Dotphoton to use commercially reasonable efforts to restore the lost or damaged Metadata from the latest back-up of such Metadata available to Dotphoton. Dotphoton shall not be responsible for any loss, destruction, alteration or disclosure of Customer’s Metadata caused by any third party.
16. Data Protection
16.1. Each Party shall comply with all applicable data protection laws. If Dotphoton processes any personal data on the Customer's behalf when performing its obligations under this Agreement, the Parties herewith state that the Customer shall be the data controller and Dotphoton shall be a data processor and in any such case (a) the Customer acknowledges and agrees that the personal data, if any, may be transferred outside the European Union, EFTA, Switzerland or the country where the Customer and/or theAuthorized Users are located, including in the United States of America, in order to carry out the Services and Dotphoton’s other obligations under this Agreement; (b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Dotphoton so that Dotphoton may lawfully use, process, and transfer the personal data in accordance with this Agreement on the Customer's behalf; (c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer if required by all applicable data protection legislation; (d) Dotphoton shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time; (e) and each Party shall take appropriate technical and organizational measures against the unauthorized or unlawful processing of personal data or its accidental loss, destruction, or damage.
16.2. If and to the extent required by the applicable data protection laws and regulations, the Parties will enter into a data transfer agreement based on the EU standard contractual clauses (with adaptations to comply with Swiss law if necessary).
17. Term and Termination
17.1. This Agreement shall commence on the date the Customer agrees to the terms and conditions outlined in this agreement by using or otherwise accessing the Services (the "Effective Date"). It shall continue for the initial term asset out in the Order Form (the "Initial Term") and, thereafter, this Agreement shall be automatically renewed for successive fixed periods of the same length as the Initial Term (each a "Renewal Period"), unless (a) either Party notifies the other Party of termination, in writing, at least twenty days prior to the end of the Initial Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Term or Renewal Period; or (b) otherwise terminated in accordance with the provisions of this Agreement.
17.2. Without affecting any other right or remedy available, either Party may terminate this Agreement with immediate effect by giving written notice to the other Party if (a) the other Party fails to pay any amount due under this Agreement on the Due Date for payment and remains in default no less than sixty days after being notified in writing to make such payment; (b) the other Party commits a material breach of any other term of this Agreement and the breach incurred is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty days after the written request of the remediation efforts; (c) any step, application, order, proceeding or appointment is taken or made by or in respect of the other Party, for distress, execution, composition or arrangement with creditors, winding up, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if the other Party is unable to pay its debts or if any event occurs which, under the applicable law of any jurisdiction to which it is subject, has an effect similar to that of any of the events referred to in this Section 17.2.
18. Effects of Termination
18.1. Upon termination of this Agreement and subject to Section 18.3, (i) the Services and Licenses and any other rights granted to the Customer under this Agreement will terminate automatically and (ii) Customer shall immediately cease to use the Platform and any other Intellectual Property Rights of Dotphoton and shall, at its own expense, delete the Platform from its IT systems and destroy any copy thereof, except for a reasonable number of copies of the Platform and Documentation solely for archival purposes.
18.2. The provisions of this Agreement that by sense or content must remain in force after termination in order to achieve the intended purpose, shall survive the termination of this Agreement. The termination of this Agreement shall be without prejudice to the Parties' accrued rights hereunder.
18.3. In the event of termination of this Agreement, all Customer Data currently being processed via the Services will remain accessible for the Customer in their original (uncompressed) format for three months. It is the sole responsibility of the Customer to download or migrate the Customer Data before the end of that period.
19. Notices and Points of Contact
Except as otherwise provided in this Agreement, each Party must provide notices, requests, and other communications to the other Party in writing by (a) certified mail, hand delivery or delivery by a reputable overnight carrier service (b) facsimile with receipt of a "transmission ok" acknowledgement, or (c) e-mail with an acknowledgment of receipt by the other Party, in each case addressed to the contacts indicated on the cover page of this Agreement. Customer shall appoint a B-PoC and at least one S-PoC during the entire Subscription Term. If a License Key is required pursuant to the applicable license terms, the Customer shall further appoint a L-PoC. The Customer shall, in written form, notify Dotphoton of any change in the aforementioned points of contact without undue delay.
20. Miscellaneous
20.1. This Agreement (including any schedules and annexes) shall supersede all prior oral and written agreements, letters or other communications or understandings of the Parties relating hereto and shall constitute the entire agreement between the Parties.
20.2. If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.
20.3. Neither Party may, or may purport to, assign, transfer, charge or otherwise deal with all or any of its rights or obligations under this Agreement in whole or in part, nor grant, declare, create or dispose of any right or interest in it without the prior written consent of the other Party which shall not be withheld without good reason.
20.4. An amendment of any of the provisions of this Agreement is only valid in writing or in electronic form (such as Skribble, DocuSign or AdobeSign, or a form which contains an electronic scan of the signature) and if signed by each Party or the Parties' authorized representatives. Any provision contained in this Agreement may only be waived by a document signed by the Party waiving such provision.
20.5. No waiver, express or implied, by either party of any right or remedy for any breach by the other Party of any provision of this Agreement will be deemed or construed to be a waiver of any succeeding breach of such provision or as a waiver of the provision itself or of any other breach or provision. No waiver of or modification or amendment to this Agreement will be effective unless reduced to writing and executed by authorized representatives of the Parties.
20.6. Should any part or provision of this Agreement be held to be invalid or unenforceable by any competent arbitral tribunal, court, governmental or administrative authority having jurisdiction, the remaining provisions of this Agreement shall remain valid. In this case, Parties shall endeavor to negotiate a substitute provision that best reflects the economic intentions of the Parties which is enforceable and shall execute all agreements and documents to the benefit of this Agreement.
20.7. Dotphoton may delegate or subcontract duties and/or obligations under this Agreement to third parties.
20.8. If a third party, according to the terms and conditions of this Agreement, is allowed to use the Services, such third party shall not be entitled to enforce any rights or benefits of this Agreement against Dotphoton.
20.9. This Agreement shall be exclusively governed by and construed in accordance with the laws of Switzerland without regard to conflict of law principles. The application of the United Nations Convention on contracts for the international sale of goods (the "CISG") is explicitly excluded. All disputes arising out of or in connection with thisAgreement shall be submitted to the exclusive jurisdiction of the ordinary courts of Basel.
[signatures on the following page]
Admin(s)
means those employees, agents and independent contractors of the Customer who are solely authorized to use the Dashboard which can be accessed as part of the Services.
Affiliate(s)
means any legal entity or person which directly or indirectly exercises Control over another legal entity or person, or is under the Control of a legal entity or person, or is under the common Control of the same legal entity or person.
Agreement
means this agreement, all schedules, amendments, and any other attachments thereto.
Annex
means the annexes to this Agreement.
Authorized User(s)
means those employees, agents and independent contractors of the Customer who are authorized to use the Services including Admins.
Availability
means the uptime availability of the Platform not including the time during Maintenance Windows or Force Majeure events.
Analysis Protocol
shall have the meaning given to it in Section 4.2.
B-PoC
means the individual appointed by the Customer as the point of contact for billing.
Business Day
means a day other than a Saturday, Sunday or public holiday in Switzerland when banks in the Canton where Dotphoton has its registered office are open for business.
Business Hours
means business hours: 9:00 am to 5:00 pm CET during each Business Day.
Compression
shall mean a method to reduce the size of an image file which enables the image file to subsequently be reconstructed via Decompression.
Confidential Information
shall have the meaning given to it in Section 14.1.
Control
means the (beneficial) ownership of more than fifty percent of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company.
Customer Data
means the data inputted to the Platform by the Customer, Authorized Users, or Dotphoton on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
Dashboard
means an online application which is a part of the Services and described in the Documentation under www.dotphoton.com.
Decompression
shall mean a method to reconstruct an image file with little to no loss of quality which previously was reduce in size via Compression.
Documentation
means the documentation made available online to the Customer by Dotphoton via www.dotphoton.com or such other web address which are to be notified by Dotphoton to the Customer from time to time which set out a description of the Services and the user instructions for the Services, as amended by Dotphoton from time to time. Notwithstanding the aforementioned, Dotphoton shall not amend the Documentation in a way which materially reduces the functionality and/or the features of the Platform, to the detriment of the Customer. Reference to Documentation within this Agreement shall always be to the most current update or change of the Documentation and with regard to Platform contained in the Order Form.
Due Date
shall have the meaning given to it in Section 7.2.
Effective Date
shall have the meaning given to it in Section 17.1.
Evaluation License
means a temporary, limited-use license granted by Dotphoton to Customer solely for the purpose of evaluating the Platform and Services. An Evaluation Version is typically for a limited period, allowing the Customer to test the full or partial functionality of the Platform before committing to a paid license.
Initial Term
shall have the meaning given to it in Section 17.1.
Intellectual Property Rights
means all patents, utility models, know-how, rights to inventions, copyright and neighboring and related rights, moral rights, trademarks, business names and domain names, rights to designs, rights to computer software, database rights, rights to use, and all other intellectual property rights, in each case whether registered or unregistered.
Jetraw Core
has the same meaning as "Software".
Jetraw Platform
has the same meaning as "Platform".
L-PoC
means the individual, appointed by the Customer, who is exclusively entitled and responsible to receive License Key(s) for the Customer, if any.
License
shall have the meaning given to it in Section 3.1.
License Key
means a string of characters enabling the usage of the Dotphoton Jetraw Core and Jetraw Platform.
License Policy
means Dotphoton’s standard license policy published under www.dotphoton.com.
Maintenance Windows
means the time during maintenance windows for the implementation of updates or upgrades of the Software or other modifications and maintenance of the Platform and scheduled downtimes, all in accordance with this Agreement.
Managed Services
means the operation of the Platform by Dotphoton as further described in the Order Form and the Service Level Agreement.
Metadata
means non-content-based data that provides information about other data, such as the characteristics, structure, and usage of the primary data being processed on the platform. Metadata may include, but is not limited to, details such as file size, data type, creation date, user activity logs, and system performance metrics.
Moral Rights
shall have the meaning given to it in Section 12.6.
Order Form
means the order form filled out by the Customer, which defines the scope of the Services requested by the Customer and which may contain Services and may be restricted by the number of concurrent Authorized Users, software editions, and the number of Admins and which is attached to this Agreement as Annex 2.1a).
Platform
means the combination of processing, disk, network, software and other resources (such as Software, the Dashboard, and any additional modules, components, libraries, add-on packs and/or feature, regardless of whether they are distributed jointly or separately, with the exclusion of third party software) provided by Dotphoton under this Agreement that together comprise a runnable and reasonably safe environment for the hosting of the Software, as listed within the Order Form.
Platform Services
shall have the meaning given to it in Section 2.1.
Renewal Period
means the period defined within Section 17.1
Report
shall have the meaning given to it in Section 13.1.
S-PoC(s)
means the individual(s) appointed by the Customer who are, on behalf of the Customer, entitled to request Support pursuant to the Service Level Agreement. The total number of S-PoCs accepted by Dotphoton is defined by the applicable Service Level.
Section
means a section of this Agreement.
Service(s)
means all services provided by Dotphoton to the Customer under this Agreement, in particular the Platform Services, the Support Services, and any other service contained in the Order Form.
Service Level
means the service level as agreed upon between the Parties within the Service Level Agreement.
Service Level Agreement
means the service level agreement between the Parties attached to this Agreement as Annex 2.1b).
Software
means Dotphoton's software programs, program modules, methods, tools etc., which enable their users to Compress and Decompress the size of an image file with little to no loss of quality. During this Agreement, Dotphoton may provide new versions of the Software including new features and bug fixes.
Subscription Fee
means the fees the Customer has to pay to Dotphoton in return for the grant of the License by Dotphoton under this Agreement.
Subscription Term
means the Initial Term together with any subsequent Renewal Periods, if any.
Support Request
means the Customer's description in text form of an error comprised of the following: (i) detailed description of the system configuration; (ii) detailed description of the different operational steps that have been performed raising the support case; (iii) detailed description of the operation(s) that has/have not been performed properly by the Service; (iv) detailed description of such operation's factual result; (v) description of the result expected by the Customer.
Support Services
shall have the meaning given to it in Section 2.2.
Free Edition License
means a temporary and limited-use license granted by Dotphoton to the Customer for the purpose of accessing a limited or restricted version of the Platform, typically with fewer features or reduced capacity, at no cost.
Virus
means anything or any device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Work Results
shall have the meaning given to it in Section 12.2.
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