Thank you for visiting nuant.com. By accessing, or using nuant.com and the associated application program interface, you (“Customer”) consent to the Terms of Service (these” Terms”), so please read them carefully. The Terms constitute the agreement and understanding regarding the use of any or all of the Services, and any manner of accessing them, between you and Nuant AG a limited liability company incorporated under the laws of Switzerland, having its corporate seat in Zug, Switzerland (address: Baarerstrasse 20, 6300 Zug), trade register number CHE: 195 003 316 (“Service Provider”).
By clicking on the “Create Account” button or by visiting the Nuant Platform, we may provide you with access and utility through our platform via software, API (application program interface), technologies, products and/or functionalities. As described in these Terms, you agree to be legally bound by these Terms and all terms incorporated by reference. If you do not agree to be bound by these Terms, do not access or use the Services. To the fullest extent permissible pursuant to Applicable Laws and Regulations and in accordance with Clause 17.6, we reserve the right to change or modify the Terms, and any policy or guideline of the Nuant Platform, at any time and our sole discretion.
1 - GENERAL
1.1 Any phrase introduced by the terms “including”, “include”, “in particular”, “for example” or similar expression shall not limit the sense of the words or following such terms.
1.2 References to Clauses, Schedules and the Order Form are, unless otherwise stated, references to Clauses Schedules and the Order Form to this Agreement.
1.3 Schedules and the Order Form are an integral part of this Agreement.
1.4 Words importing the singular include the plural and vice versa.
1.5 References to persons include incorporated and unincorporated bodies.
1.6 References to “include”, “in particular” or similar are to be construed without limitation.
1.7 Headings are for convenience only and shall not limit or otherwise affect the construction or interpretation of this Agreement.
1.8 References to days means calendar days unless specified to be Business Days.
All capitalized expressions as used in this Agreement, unless otherwise defined within the body of this Agreement or where the context expressly requires otherwise, will have the meaning set out below.
2.1 “Affiliate(s)” means any corporation, partnership or other entity that is under the direct or indirect control of the applicable Party or its respective successors and assigns. For purposes of the foregoing, “control” shall exist whenever there is ownership, profits, voting or similar interest (including any right or option to obtain such an interest) representing at least 51% of the total interests of the pertinent entity then outstanding.
2.2 “Authorized User” means those individuals and entities who are permitted to use the Software as specified in Schedule 1.
2.3 “Business Days” means a day on which banks are open for business in Zurich, Switzerland and which is not a Saturday, Sunday, or public holiday in Zurich.
2.4 “Confidential Information” All non-public, confidential, or proprietary information of each Party (“Confidential Information”), including, but not limited to, past, present and future research, development, business activities, products, software, services, technical knowledge, designs, methodologies, business plans or forecasts, finances, pricing, marketing plans, customers, prospects or other affairs, specifications, samples, patterns, designs, plans, drawings, documents, data or operations disclosed by one Party to the other Party, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”, is confidential, and may not be disclosed or copied unless authorized by the disclosing Party in writing.
Confidential Information does not include any information that:
(i) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Agreement;
(ii) is obtained by the Receiving Party on a non-confidential basis from a third party that was not legally or contractually restricted from disclosing such information.
(iii) the Receiving Party established by documentary evidence, was in the receiving Party’; possession before the disclosing Party’;s disclosure hereunder.
(iv) was or is independently developed by the receiving Party without using any confidential information from the disclosing Party.
2.5 “Customer” means the legal entity or individual who enters into this Agreement.
2.6 “Customer Data” shall mean all the Customer’s electronic data, content, and information (including personally identifiable information) owned, held, used, created or submitted by or on behalf of Customer through the Products and the Services or to Third-Party Tools or other products operated by the Service Provider for use in connection with the Products and the Services.
2.7 “Customer Materials” means any materials, data, information, software, equipment, or other resources owned by or licensed to Customer and made available to Service Provider under facilitating the use of the Products and Services, including Customer Data.
2.8 “Disclosing Party” means the party disclosing Confidential Information
2.9 “Documentation” means Service Providers user manuals and/or related documentation relating to Service Provider software that the Service Provider makes available to the Customer to facilitate the performance of services
2.10 “Downtime” is defined as any period when users are unable to access the Service Provider’s sites for which they have appropriate permissions. The ability to access the Service Provider’s sites is determined by automated monitoring that attempts to access the Service Provider’s sites every minute supplemented by server logs. Downtime does not include the period when the Service is not available as a result of (a) Scheduled Downtime or scheduled network, hardware, or Service maintenance or upgrades; or (b) the acts or omissions of the Customer or the Customer’s employees, agents, contractors, or vendors, or anyone gaining access to Service Provider’s network using the Customer’s passwords or equipment; or © Customer’s requested changes.
2.11 “Early Adopter Programme - EAP” means Service Providers Products and Services which are available to Customer as specifically specified in the “Order Form”
2.12 “General Support Request” means any request of the Customer that is made towards the Service Provider that does not relate to an Incident.
2.13 “Intellectual Property” “includes (without limitation) all current and future, both registered and unregistered, intellectual property rights, worldwide, including but not limited to all patents, patent applications, trademarks, trademark applications, service marks, trade names, copyrights, trade secrets, licences, domain names, know-how, rights to source code, object code and accompanying technical documentation, URLs and web addresses, ownership rights and processes, databases, data collections andany rights therein2.13 “Incident” means any set of circumstances failing to meet a Service Level.
2.14 “Incident” means any set of circumstances failing to meet a Service Level.
2.15 “Market Data Metrics” refers to the displayed price of an asset or token and the displayed Volume of an asset.
2.16 “Order Form” means an “Order Form,” “Addendum,” “Order,” Schedule,” “Permission Letter” and other terms related to a Service, each of which incorporates the terms of this Agreement. An Order Form may be entered as requested by the Service Provider, including through a Service Provider-designated e-signature service (such as PandaDoc or DocuSign) or another standard process of the Service Provider for transacting with its customers.
2.17 “Product/s” means the Software or any portion thereof means a suite of software developed by Service Provider, consisting of the SaaS Platform, including any (i) software, analytics, applications (including Service Provider and third-party hosted services) or APIs, (ii) data management (including data collection or integration), reporting or analysis, (iii) data, indexes, analysis, research, ratings, reports, publications, models, information or other content, (iv) professional, consulting, implementation or support services, (v) any other products or services identified or delivered by Service Provider or (vi) any applicable Documentation, and related Intellectual Property that runs on the SaaS Platform and/or other products or services specified in the Schedule 1, along with all applicable Documentation.
2.18. “Receiving Party” means the Party to whom such Confidential Information is disclosed.
2.19 “Service” or “Services” refers to the Service provided to the Customer pursuant to this Agreement. Services include any information that the Service Provider may communicate to Customer through the Services, by email and by other means of communication, including all trademarks, service marks, logos or other branding owned or controlled by the Service Provider relating to the Services or Service Provider.
2.20. “Scheduled Downtime” is defined as (a) Downtime within pre-established maintenance windows; Customer-specific updates/customization; general upgrades to firmware; or (b) Downtime during major version upgrades. Scheduled Downtime is not considered Downtime for purposes of this Agreement.
2.21 “Response Time” is the time that the Service Provider shall take to acknowledge a call, email, or support ticket via the customer support ticketing system of the Customer, advising the Service Provider of a problem.
2.22 “Resolution Time” is the time that the Service Provider shall take to fix the problem.
2.23 “Software” means the executable, object code version of the Service Provider's proprietary application software licensed to Customer.
2.24 “Support Services” means the support services performed by the Service Provider.
2.25 “Term” means the period that this Agreement remains in force and effect by clause 16.
3.1 LICENSE GRANT
The Service Provider grants Customer, a limited, nonexclusive, non-transferable, non-sublicensable, revocable license to access and use the Software that is hosted by Service Provider and provided as a software-as-a-service solution (“the Software), for its own internal business purposes subject to customer abiding by the terms of this Agreement.
3.2 CUSTOMER RESTRICTIONS
The Customer shall not, except as may be allowed by any applicable law which is incapable of exclusion, by agreement between the Parties and except to the extent expressly permitted under this Agreement:
a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
b) attempt to decompile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Software;
c) access all or any part of the Services and Documentation to build a product or service which competes with the Services and/or the Documentation; or
d) use the Software and/or Documentation to provide services to third parties; ore) license, directly or indirectly, sublicense, relicense, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software and/or Documentation available to any third party except to the Authorized Users; orf) attempt to obtain, or assist third parties in obtaining, access to the Software and/or Documentation, other than as provided under this Agreement.
e) The Customer shall take reasonable steps to prevent unauthorized access to the Software, including, without limitation, by protecting its passwords and other log-in information. The Customer shall notify the Service Provider immediately of any known or suspected unauthorized use of the Service Provider’s Software or breach of its security and shall use best efforts to stop said breach.
f) Customer shall not download or copy Market Data Metrics. Customers may print Portfolio reports containing Market Data Metrics or download them in formats such asPDF for internal reporting purposes only.
g) On-chain Data Metrics: No On-chain data may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without Service Provider’s express prior written permission. Customers may download On-chain Data for internal purposes such as but not limited to internal reporting and calculation requirements.
3.3 CUSTOMER DATA
3.3.1 Customer agrees and acknowledges that (a) Service Provider may require access to the Customer Data to exercise its rights and perform its obligations under the Agreement and (b) to the extent that this is necessary but subject to confidentiality provisions under this Agreement.
3.3.2 Customer grants Service Provider the worldwide, non-exclusive, royalty-free, perpetual, fully paid-up, and irrevocable, right to:
(i) use Customer Data to provide Services to Customer and provided that Service Provider shall only use the Customer Data to provide the Services and shall not disclose Customer Data to such other customers;
(iii) For the avoidance of doubt, the Service Provider uses a combination of Customer Data from all its customers as well as third-party sources to provide its services; without such Customer Data, the Service Provider is unable to provide the Services. Service Provider may provide Customer Data to authorized third parties in order for Service Provider to provide the Services and Customer consents to such transfer of Customer Data.
Subject to the limited licenses granted herein, the Service Provider shall own all rights, title, and interest in and to the Software, Services, Documentation, and other deliverables provided under this Agreement, including all modifications, improvements, upgrades, derivative works, and feedback related thereto and intellectual property rights therein. Customer agrees to assign all rights, title, and interest it may have in the foregoing tothe Service Provider.
4. SCOPE OF SERVICES
4.1 The Service Provider shall provide such services as mentioned in the Agreement and the Order form. Customer agrees that Customer’s purchases and entry into this Agreement are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Service Providers regarding future functionality or features.
4.2 Order Forms will be entered into by the Service Provider and Customer. When Service Provider signs an Order Form it will include the terms of this Agreement by reference.
5. EARLY ADOPTER PROGRAMME ("EAP")
a) The EAP is entered into for the sole purpose of allowing the Customer to evaluate the suitability of the Service provider's products and services for the Customer’s needs. The license term is limited to the period outlined in the applicable Order Form and Customer rights to use the EAP will terminate upon the expiration of such Period.
b) The Acceptance and length of membership of the Customer to the EAP is at the sole discretion of the Service Provider.
c) Upon the expiration of the EAP, Customer will be required to either (i) purchase a license to use the Software; or (ii) cease all use of the Software and destroy all copies of the Software and (iii) Documentation, in its possession or control and certify in writing to Service Provider that said Software and Documentation have been destroyed.
6. SERVICE LEVELS
6.1 The Service Provider’s team consists of experienced technical support engineers combined with direct access to technical support at firstname.lastname@example.org. Service Provider commits to the time taken to first respond to a support request (“First Response Time”) based on the severity of issues per the service level objectives (SLO) listed below: The Customer shall be provided with the support as per the defined incident levels in the following table:
DESCRIPTION OF INCIDENT LEVEL
FIRST RESPONSE TIME SLO
Level 1: (Critical)
Crash or malfunction of the Software. The Software cannot be used for production. The problem affects operation in a manner which requires immediate attention.
Level 2: (High)
Issues that cause a material degradation of one or more critical functions of the Software but do not impact the overall operation of the Software.
Level 3: (Medium)
Irregularity on parts of the Software, which affects or disables a negligiblefeature of the Software. The effect to the Customer is minor or has no impact onthe overall operation of the Software.
6.2 DEFINITION OF SERVICE LEVELS
The Software and the Services are provided by the Service Provider subject to the following service levels.
6.2.1 AVAILABILITY(a) The Service Provider shall provide the Software to the Customer as a SaaS solution and will be operated on a continuous 24-hour x 7 days basis.(b) Software is deemed “Available” if it is running on the Service Provider’s infrastructure, can be reached from outside the hosted location and there is no Severity Level 1 incident in place.(c) Availability shall be calculated as:A = (QM - SD - D) / (QM - SD) x 100% where:A = AvailabilityQM = Total Quarterly MinutesSD = Scheduled DowntimeD = Downtime. N.B. Scheduled and Regular Maintenance do not constitute nonavailability and are not included in the Availability calculation.
6.2.2 REACTION TIMES AND TARGET RESOLUTION TIMES
(a) The time elapsed between an Incident becoming known to the Service Provider and the Service Provider starting analysis on the cause of the defect or disruption (the “Reaction Time”) shall be measured by the Service Provider.
(b) Reaction Times shall start once notice regarding an Incident has been received by the Service Provider. In case of Incident notices delivered outside of Service Hours, the respective Reaction Time shall begin at the beginning of the following block of Service Hours.
(c) Reaction Times shall end once the Service Provider has started to analyse the cause of the defect or disruption.(d) Reaction Times shall only run during Service Hours:
- Business Days: Monday - Friday, excluding public holidays in the Canton of Zurich, Switzerland
- Business Hours: 8:00 am - 8:00 pm Central European Time (CET)
(d) It is vital that the Customer submits every Incident report via the Service Provider’s support communication channels set out in the Order Form. If an Incident is not notified in the prescribed manner, the Reaction Time will not start.
(e) The Service Provider shall in case of defects in the Software or disruptions of Customer’s access to the Software adhere to the following Reaction Times. The following table also sets out target resolution times, which shall however not be binding but only operate as guidance with respect to the Service Provider’s internal targets relating to the resolution of Incidents.
(f) The Service Provider shall provide the Customer with reasonable advance notice of any planned outages and changes to the production environment and software that may occur (each a “Maintenance Window”) during which the Software will be unavailable.
7. SERVICE DELIVERY
(a) The Service Provider may subcontract any part of its Service provision under the Agreement (e.g., by usage of a third-party cloud platform vendor or hosting provider (collectively, “third-party providers/providers”) and/or otherwise use third party vendors to render its Services under the Agreement without the prior consent of Customer.
(b) The Service Provider will provide the Customer with access to the Services directly or through an authorised third-party provider. Customer shall abide by any third-party provider terms, provided that this Agreement shall control concerning Customers’ use of the Services in the event of a conflict with any third-party provider terms.
(c) Customer agrees and acknowledges that (a) Service Provider may require access to the Customer Data to exercise its rights and perform its obligations under the Agreement and (b) to the extent that this is necessary but subject to confidentiality provisions under this Agreement.
(d) The Service Provider may collect, compile and use Customer Data and information about the Customers’ and the Authorised Users’ use of the Products and Services to generate anonymized and aggregated statistical and analytical data (including to compile statistical and performance information related to the provision and operation of the Products and the Services) (“Analytical Data”), use such Analytical Data for Service Provider’s internal research and product development purposes and to conduct statistical analysis and identify trends and insights; and supply Analytical Data to third parties;
(e) The Service Provider may provide the Customer with Authorization Information to use the Services. Customer will
(i) Protect all authorization information including complying with the Service Provider’s reasonable security procedures,
(ii) be solely responsible for any activities that occur from the use or misuse of authorization information due to no fault of the Service Provider,
(iii) not permit Authorised Users to share individual authorization Information, and (iv) immediately notify the Service Provider of applicable personnel changes. Service Provider may suspend or terminate access to Services in the event of actual or suspected unauthorized use of authorization information. Service Provider may collect login and usage information for use in its business.
(f) It is the consumer’s sole responsibility to back up its data (including its client data) and to procure, install, maintain, carry out and pay for any equipment and technology upgrades, refreshes and replacements of its equipment, platform, network, computers, software, communications connections, and facilities on or through which any Services are received, accessed, transmitted or used by Customer (collectively, “Customer Facilities”)
(g) Service Provider is not responsible for (i) Customer facilities, including loss of information, (ii) any third-party provider of any Service, including to or through any Customer facilities, (iii) transmission of any Service beyond the point of Service Provider’s computer facilities, or (iv) any communication delays, interruptions, or failures of any Service. The customer acknowledges that the Internet and other means of communication may be unreliable and unsecured.
(h) Service Provider may (i) cease or suspend compiling, distributing, or offering any part of the Services, (ii) make changes in the titles, names, format, organisation, or content of the Services, and (iii) alter or discontinue any communications facilities or third-party providers that disseminate the Services. (iv) The Service Provider may from time to time in its sole discretion develop and provide updates to the Products or the Services, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related Documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. The customer agrees that the Service Provider has no obligation to provide any Updates, to fix bugs or to continue to provide or enable any particular features or functionality.
(i) Customer agrees that it shall indemnify Service Provider and all of its Personnel against any liability, claim, proceeding, cost, expense and loss of any kind arising from any actual or alleged claim by a third party that any Customer Data infringes the rights of that third party (including intellectual property rights and privacy rights) or that the Customer Data is, incorrect or misleading, or Customer’s Authorised User’s provision of and rights granted to Customer violate applicable law.
8. FEES AND PAYMENTS
8.1 FEES PAYABLE
In consideration of Customer's access to, and use of the Products, the provision by Service Provider of the Services and Service Provider other undertakings under this agreement, Customer agrees to pay all the fees and the amounts and fees specified in the agreement and the Order Form. If no other payment terms are specified in any Order from, all fees and other charges are nonrefundable and shall be due and payable by the Customer within thirty (30) days of the date of the applicable invoice. The fees are subject to change by the Service Provider from time to time, including any periodic or annual price increases in a notice to the Customer at least 60 (sixty) days before the commencement of the next - renewal term (as defined below in Section 16 for the applicable service.) Any discount offered is for the period specifically mentioned in the applicable Order Form and will not be offered in any renewal term. Should Customer fail to pay any amount due hereunder Service Provider shall have the right to immediately suspend all the Services provided to the Customer under this Agreement until full payment is received. Such suspension shall be preceded by an email notice (“Suspension Notice”) provided by the Service Provider to the Customer's last known email address. Service Provider reserves the right to invoice at any time, any due amounts, which for any reason have not yet been invoiced at the regular date. If Customer is invoiced in advance, Customer understands and acknowledges that all such advancepayments are made on a non-refundable basis.
8.2 DISPUTED CHARGES
The customer must notify the Service Provider in writing of any dispute with invoiced charges within five (5) days of the date of the invoice to email@example.com. Should Customer fail to send such notice, Customer will be deemed to have agreed to the charges as invoiced. No further disputes will be accepted by the Service Provider after such timeframe.
8.3 LATE PAYMENT AND CHARGES
(a) In addition to, and without prejudice to any other remedy available to the Service Provider, if any payment is not received by the Service Provider from Customer when it is due, and is not the subject of a good faith dispute, the Service Provider may, at its sole discretion, suspend the provision of services and/or terminate this Agreement immediately, without liability and:
(i) assess interest at the rate of 5% per annum on any unpaid amounts from the due date until paid in full and/or
(ii) modify the payment terms applicable to the Customer. The payment of such interest will be in addition to and not in substitution for any other remedies available to the Service Provider in respect of such non-payment.
All amounts payable under this Agreement shall exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties, and similar charges. The customer must pay the Service Provider the total invoice amount without deductions for taxes, assessments, fees, or charges of any kind. The customer is responsible for paying all sales, use, excise, value-added, withholding, or other tax or governmental charges (collectively “Taxes”). Customer shall be responsible for payment of all Taxes resulting from this Agreement.If such Taxes are imposed, and Customer is required to deduct such amounts from the fees payable hereunder, the Parties agree that the original amount invoiced by Service Provider will be increased by the amount of such Taxes such that Customer pays Service Provider the amount of fees as originallyinvoiced.
9. AUDIT RIGHTS AND RECORDS
During the Term and for two (2) years following termination or expiration of this Agreement, Customer agrees to keep all usual and proper books and records relating to its performance of and compliance with this Agreement. During that period, upon at least 15 (fifteen) business days’ notice Service Provider shall have the right, at Customer's expense, to periodically audit the records of the Customer concerning matters covered by this Agreement either by physically visiting Customer’s premises or by remote access (as determined by Service Provider).
10. CUSTOMER’S RESPONSIBILITIES
a) Customer shall provide commercially reasonable information and assistance to Service Provider to enable Service Provider to deliver the SaaS Services. Customer acknowledges that Service Provider’s ability to deliver the SaaS Services in the manner provided in this Agreement may depend upon the accuracy and timeliness of such information and assistance.
b) Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that Service Provider exercises no control over the content of the information transmitted by Customer through the SaaS Services.
c) Customer shall not upload, post, reproduce or distribute any information, Software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
d) Customer shall be solely responsible for the acts and omissions of its Authorized Users. Service Provider shall not be liable for any loss of data or functionality caused directly or indirectly by the Authorized Users.
e) The Customer shall take reasonable steps to prevent unauthorized access to the Services, including, without limitation, by protecting its passwords and other log-in information. The Customer shall notify the Service Provider immediately of any known or suspected unauthorized use of the Service Provider’s Software or breach of its security and shall use best efforts to stop said breach.
11. CUSTOMER DATA AND INFORMATION
a) Customer shall be solely responsible for the accuracy, quality, integrity, legality, reliability, timeliness, appropriateness, and intellectual property ownership and right to use all of the data and information (including, but not limited to, concerning any personally identifying information) the Customer processes, uses and transmits through the use of the Services, and the Service Provider shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store Customers’ data or information for any reason. The Service Provider reserves the right to purge and delete all of the Customer’s data and information, if any, in its possession, upon the termination or expiration of this Agreement.
b) In the Customer’s use of the Service Provider Services, the Customer shall comply with all applicable laws, including, without limitation, laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data and will ensure that the Services provided by the Service Provider are used in conformity with all applicable laws and regulations and third-party rights. The Customer will not use the Software in any manner that violates any data protection statute, regulation, or similar law.
c) Each Party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction, or damage.
d) Subject to the terms and conditions of this Agreement, the Customer shall grant to the Service Provider a limited, non-exclusive, and non-transferable license, to copy, store, configure, perform, display, and transmit Customer Data solely as necessary to provide the SaaS Services to the Customer.
12. INTELLECTUAL PROPERTY
Customer acknowledges that the Service Provider owns all rights, titles, and interests, including all Intellectual Property about the software and the Services performed under this Agreement including all work products, derivative works, developments, inventions, technology, or materials provided under or otherwise or otherwise made available to Customer, (including all related components) and Customer hereby assigns all such rights, if any, to Service Provider. Service Provider expressly reserves all rights not granted to Customer in this Agreement.
a) The Service Provider represents and warrants that it will provide the SaaS Services in a professional manner consistent with general industry standards.
b) The Service Provider warrants that the SaaS Services will perform in all material respects by the Documentation.
c) The Service Provider does not guarantee that the SaaS Services will be performed error-free or uninterrupted, or that the Service Provider will correct all SaaS Services errors. The Service Provider does however warrant that the Software will be available by the Service Levels set out in this Agreement.
d) Customer acknowledges that the Service Provider does not control the transfer of data over communications facilities, including the Internet, and that the SaaS Services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.
e) Service Provider provides its Products and Services “as is” and it does not warrant that the Customer’s or Customers’ use of the Services will be uninterrupted or error-free; nor that the Products, Services, Documentation and/or the information obtained by the Customer through the use of the Product will meet the Customers requirements; and 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, blockchain and the Customer acknowledges that the use of Product and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
f) This section sets forth the sole and exclusive warranty given by the Service Provider express or implied concerning the subject matter of this Agreement. Neither the Service Provider nor any of its licensors or other suppliers warrant or guarantee that the operation of the Services will be uninterrupted, virus-free, or error-free, nor shall, the Service Provider or any of its Service Providers be liable for any losses or harms sustained by Customer due to theft or destruction of Customer’s or any user’s data, files, or programs.
g) Any further other warranties shall be excluded.
14.1 INDEMNIFICATION BY SERVICE PROVIDER
a) Service Provider shall indemnify, hold harmless, and defend Customer from and against all costs, expenses including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party that any use of, or access to, the Software under this Agreement infringes any Intellectual Property under applicable laws. Notwithstanding this, the Service Provider will have no obligation or liability to the extent that the alleged infringement arises from
(i) the combination, operation, or use of the Software with products, services, information, materials, technologies, business methods or processes not provided by the Service Provider.
(ii) modifications to the Software not made by Service Provider; or
(iii) use of the Software in a manner not contemplated by this Agreement (circumstances under the foregoing clauses (i), (ii), (iii) and (iv), are collectively referred to as, “Customer Indemnity Responsibilities”).
b) upon the occurrence of a claim that indemnity is or may be due under this clause 11, or if the Service Provider believes that such a claim is likely, the Service Provider may, at its option:
(i) appropriately modify the applicable Software so that it becomes non-infringing without a material loss of functionality, or substitute functionally equivalent software or services.
(ii) obtain a license to the applicable third-party Intellectual Property to allow for Customer’s continued use of the applicable Software as contemplated by this Agreement,
(iii) terminate this Agreement on written notice to Customer and refund any amounts paid in advance for services not yet received. The obligations in this clause 11 shall constitute the Service Providers’ entire liability and the Customer’s sole remedy for any actual or alleged infringement.
14.2 INDEMNIFICATION BY CUSTOMER
Customer shall indemnify, hold harmless, and, at Service Provider’s option, defend Service Provider from and against all costs, expenses (including reasonable attorneys’ fees), damages, and liabilities resulting from any claim by any third party arising from or in connection with Customer Indemnity Responsibilities or Customer’s breach of this Agreement.
Customer will indemnify Service Provider and Service Provider’s officers, employees, directors, agents, independent contractors, licensors and suppliers (“Service Providers Indemnitees”) from and against any losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys; fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) incurred by such Service Provider Indemnitee resulting from any action by a third party to the extent such Losses arise out of or result from, or are alleged to arise out of or result from:
(a) any actions that Customer, or an Authorised User, takes or fails to take in connection with the use of the Products or the Services,
(b) Customer Data infringes the rights of that third party (including intellectual property rights and privacy rights) or that the Customer Data is, incorrect or misleading, or Customer’s or Authorised User’s provision of and rights granted to Service Provider in Customer Data violates applicable law or that
(c) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any User;
(d) any allegation of facts that, if true, would constitute Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement;
(e) Customer or any Authorised User’s violation of applicable law;
(f) Customer or any Authorised User’s violation of Terms of Services and/or Privacy Practice of Service Provider; or gross negligence or more culpable act or omission (including recklessness or wilful misconduct) by Customer, any Authorised User, or any third party on behalf of Customer or any Authorised User, in connection with this Agreement. Customer shall not be required to indemnify Customer for any Losses that directly arise out of or result from Customer’s recklessness or willful misconduct. Customer will promptly notify Service Provider in writing of any action, threat of suit or claim for arbitration that Customer receives that may qualify for an indemnification provided herein.
14.3 INDEMNIFICATION PROCESS
The Party seeking indemnification agrees to give the indemnifying Party:
a) prompt written notice of such claim;
b) authority to control and direct the defence and/or settlement of such claim; and
c) such information and assistance as the indemnifying Party may reasonably request, at the indemnifying Party’s expense, in connection with such defence and/or settlement. Notwithstanding this, the indemnifying Party must not settle any third-party claim against the indemnified Party unless such settlement completely and forever releases the indemnified Party with respect thereto or unless the indemnified Party provides its prior written consent to such settlement. In any action that the indemnifying Party provides defence on behalf of the indemnified Party, the indemnified Party may participate in such defence at its own expense by counsel of its choice.
15. LIMITATION OF LIABILITY
Types of Damages To the fullest extent permitted by law and except for breach of Section 1 (Customer Restrictions), Section 14 (Confidential Information) and Section 9 (Intellectual Property), in no event will either party be liable to the other party for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, costs of delay, any failure of delivery, business interruption, costs of lost or damaged data or documentation or liabilities to third parties arising from any source, even if a party has been advised of the possibility of such damages. Service Provider further disclaims responsibility for all liability and damages caused by
(a) any unauthorised access of servers, infrastructure, or data used in connection with the Services;
(b) any bugs, viruses, or other harmful code that may be transmitted to or through the Services;
(c) any errors, inaccuracies, omissions, or losses in or to any Customer Data provided to Service Provider;
(d) third-party content provided by the Customer; or
(e) the illegal conduct of others. Service Provider will have no liability to any third party for any losses or damages under any theory of liability This limitation upon damages is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective.
(f) Amount of Damages. To the fullest extent permitted by law and except for breach of Section 1 (Customer Restrictions,) Section 14 (Confidential Information) and Section 9 (Intellectual Property), the maximum liability of either party arising out of or in any way connected to this agreement will not exceed the Fees paid to Service Provider by Customer under this Agreement during the (12) months preceding the act, omission or occurrence giving rise to such liability.
16. FORCE MAJEURE
Neither party will be held liable for failure to perform any obligation or delay in performance resulting from or contributing to any cause beyond that party’s reasonable control, including without limitation any act of God, the act of civil or military authority, the act of war or terrorism, act or order (including delay, failure to act, or priority) of any governmental authority, power outages, failures of telecommunications or internet service providers civil disturbance, insurrection or riot, sabotage, fire, severe weather conditions, earthquake, flood, strike, work stoppage or another labour difficulty, outbreak of an epidemic, pandemic, virus or other public health crisis, embargo, delay in transportation or embargoes.
The affected party’s obligations will be suspended solely to the extent caused by the force majeure and so long as it lasts, and the time for performance of the affected obligation will be extended by the time of the delay that the force majeure causes.
17. CONFIDENTIAL INFORMATION
a) The Disclosing Party may disclose or grant to the Receiving Party access to information that the Disclosing Party considers Confidential Information.
b) The Receiving Party agrees to hold in confidence and not to disclose or reveal to any person or entity the Disclosing Party’s Confidential Information, and not to use the Disclosing Party’s Confidential Information for any purpose other than in connection with the Parties; discussions regarding, and performance of, a transaction. Without limiting the generality of the foregoing, the Receiving Party shall not disclose Confidential Information of the Disclosing Party to any of the Receiving Party’s employees or agents except those employees or agents who are required to have such Confidential Information to participate in the Parties' discussions regarding, or performance of, a transaction, and who are under a written obligation of confidentiality or nondisclosure to the Receiving Party. The Receiving Party agrees to take commercially reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees in breach of this Agreement, including but not limited to advising each permitted employee to whom Confidential Information is disclosed of his/her obligations regarding confidentiality and non-use of such information. The Receiving Party shall be fully responsible for any breach of this Agreement by its employees. The Receiving Party may disclose Confidential Information of the Disclosing Party if required by law or judicial, arbitral or governmental order or process, provided the Receiving Party gives the Disclosing Party prompt written notice of such requirement, reasonably co-operates (at the Disclosing Party’s expense) with the Disclosing Party’s efforts to obtain a protective order or other appropriate relief, and discloses only the Confidential Information required to be disclosed under such law, order or process.
c) The Parties agree to return to each other or to destroy upon written request of the other party, any Confidential Information received under this Agreement, together with all copies that may have been made, promptly upon request of the other party, or, if not requested earlier, upon completion of the transaction or termination of this Agreement. Upon destruction of Confidential Information or any copies thereof, the Party accomplishing such destruction shall certify in writing to the other party that such destruction has occurred.
d) The Receiving Party acknowledges and agrees that, due to the unique nature of Confidential Information, there can be no adequate remedy at law for breach of this Agreement and that such breach would cause irreparable harm to the Disclosing Party. The Disclosing Party shall thus be entitled to seek immediate injunctive relief, in addition to whatever other remedies it might have at law or in equity, in the event of an actual or threatened breach of this Agreement by the Receiving Party.
e) Confidential Information shall remain the sole and exclusive property of the Disclosing Party. No patent, copyright, trademark, or other proprietary right is licensed, granted or otherwise transferred by this Agreement or any disclosure hereunder, except for the right to use such information by this Agreement. No warranties of any kind are given for the Confidential Information disclosed under this Agreement.
Parties shall comply with the General Data Protection Regulation and other relevant privacy legislation and regulations concerning the protection of personal data (altogether: “Privacy Legislation”). Parties will provide each other with all necessary assistance in concluding all agreements required by the Privacy Legislation, if necessary
19. TERM AND TERMINATION
The Term of this Agreement shall commence on the Effective Date and continue until terminated as provided herein. The initial term of any Order Form shall be as set forth therein, commencing on the effective date of such Order from. Unless otherwise indicated in the applicable Order form
(i) the initial term and any renewal terms (each such renewal term, a “Renewal Term”) shall each be twelve (12) months and
(ii) each Order Form shall be automatically extended for successive Renewal Terms unless notice of non-renewal is given by either party at least thirty (30) days before the end of the then-current term. Each Renewal Term shall be subject to the Fees for the applicable Services invoiced or notified in advance by the Service Provider under Section 9(1) unless otherwise specified in an Order Form.
If any Order Form is terminated for any reason:
(i) Customer shall pay all amounts due and owing to Service Provider as of the effective date of such termination, and
(ii) except as set forth herein, Customer shall not be entitled to any refund or credit of Fees paid or payable. The Agreement may be terminated by either party upon written notice after all Order Forms hereunder have expired or terminated.
19.2 TERMINATION FOR BREACH
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of non-payment), ifthe other party
(a) materially breaches any of the terms or conditions of this Agreement or engages in any illegal or fraudulent activity
(b) is unable to perform its material obligations under this Agreement for thirty (30) days as a result of force majeure outlined in Section
14.6 hereunder. Customer will pay in full for Products or Services provided up to and including the last day on which the Products or the Services are provided for. In the event the Customer terminates this Agreement other than under the terms outlined in this Section 19.2, the Customer shall be required to promptly pay at once for the full remainder owed through either the Initial Term or Renewal Term, as applicable.
19.3 TERMINATION OF SERVICES
Upon any termination of this Agreement, an Order Form or any Service for any reason, Customer agrees to destroy all copies of the Products or the Services in Customer’s possession or control. Unless otherwise deleted by the Customer via the Product Features, the Service Provider will make all Customer Data available to the Customer for electronic retrieval for thirty (30) days, but thereafter Service Provider may, but is not obligated to, delete stored Customer Data. Service Provider will own all intellectual property rights and title to Analytical Data following the termination or expiration of this Agreement. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, indemnification obligations, warranty disclaimers, and limitations of liability. Any termination of this Agreement will also contemporaneously terminate all licences and access authorizations that it grants except those in Sections 4.7 (Feedback) and 7.8 (Access to Analytical Data). Upon the termination or expiration of this Agreement, Customer must pay all accrued fees provided before such termination or expiration.
19.4 TERMINATION FOR INSOLVENCY
Either Party may terminate this Agreement immediately upon written notice after the other Party has executed an assignment for the benefit of creditors or filed for relief under any applicable bankruptcy, reorganisation, moratorium, or similar debtor relief laws, or if a receiver has been appointed for the other Party or any of its assets or properties, or an involuntary petition in bankruptcy has been filed against such Party, that has not been dismissed or stayed within thirty (30) days.
19.5 ACCRUED OBLIGATIONS
Termination of this Agreement will not release the Parties from any liability that, at the time of termination, has already accrued or that thereafter may accrue concerning any act or omission before termination, or from any obligation that is expressly stated in this Agreement to survive termination. Notwithstanding this, the Party terminating this Agreement will not incur additional liability merely by such termination.
19.6 CONSEQUENCES OF TERMINATION
Upon any termination of this Agreement, Customer shall;
(i) promptly within 30 days’ pay to the Service Provider all amounts due and remaining payable; and
(ii) if applicable under any. Schedule, and pay any applicable termination fee; and
(iii) immediately discontinue all use of the Products licensed to it by the Service Provider.
20.1 PUBLICITY, MARKETING AND FEEDBACK
20.1.1 Publicity: Customer agrees that Service Provider may use the Customer’s name and corporate logo, trademarks or tradenames (if applicable) in its sole discretion in anypresentation, promotion, marketing materials, advertising, publicity release and/or business-generating effort to indicate that Customer is a customer on the SaaS Platform and in its marketing materials. The parties may agree in writing to marketing efforts, including case studies and events.
20.1.1 Feedback. Service Provider may allow Customer to provide Service Provider with comments or suggestions about Service Provider or the Products or Services (“Feedback”). Customer hereby grants Service Provider a perpetual, irrevocable, non-exclusive, worldwide, royalty-free licence to copy and store any Feedback and use it to develop new products, improve or modify the Products, Services or as Nexera may otherwise deem appropriate.
20.2 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed by Swiss law without giving effect to conflict of law rules and with the Vienna Convention on the Sale of Goods being expressly excluded. The Parties agree that any disputes between the Parties arising out of or about this Agreement shall be resolved amicably between the Parties. Should the Parties fail to resolve the dispute amicably within thirty (30) days upon written request by one Party to the other Party, such dispute shall be exclusively submitted to the courts of Zurich, canton of Zurich, Switzerland.
Customer may not assign, transfer, subcontract, or transfer this agreement with the prior written consent of the Service Provider (which such consent must not be unreasonably withheld), except no such consent shall be required for an assignment in connection with a sale of all or substantially all of Customer’s assets or equity.
20.4 ENTIRE AGREEMENT
This Agreement, the exhibits, and schedules hereto and the other documents delivered pursuant hereto constitute the full and entire understanding and agreement between the Parties about the subjects hereof, and no party shall be liable for or bound to any other in any manner by any oral or written representations, warranties, covenants, and agreements, except as specifically set forth herein and therein.
In the event, that one or more of the provisions of this Agreement should, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein.
The Service Provider has the right to amend, replace, supplement or delete (each, an “Amendment”) these terms or any part of these Terms.
Failure by either Party to enforce the provisions of this Agreement will not represent a waiver of such rights and will not affect the validity of this Agreement or affect that Party’s rights to take subsequent action.
20.8 RESERVATION OF RIGHTS
Nothing in this Agreement will preclude or limit Service Providers ’s rights to market, make available or license any product or services that the Service Provider now offers or may in the future offer. The section shall be subject to the provisions as included in this agreement including, but not limited to provisions regarding the protection of Confidential Information.
Any notice to be given under this Agreement must be written in English and may be delivered to the address set out on the Order from or to such other address as the relevant Party may designate in writing from time to time. Notice will be deemed given when delivered personally, sent by confirmed facsimile transmission, or sent by certified or registered mail nationally recognized express courier, return receipt requested, to the address shown on the Order Form.19.10 HEADINGSThe headings in this Agreement are inserted merely for convenience and shall not affect the meaning or interpretation of this Agreement.
Last Updated: January 2024