TERMS AND CONDITIONS FOR DATA & MORE SOLUTION
IF THERE ARE ANY CONFLICTING TERMS AND CONDITIONS BETWEEN THE SIGNED CONTRACT AND THESE TERMS OF SERVICE, THE SIGNED CONTRACT TAKES PRECEDENCE OVER THESE TERMS OF SERVICE.
DATA & MORE APS AND/OR ITS AFFILIATES (“D&M”) IS WILLING TO GRANT ACCESS TO SERVICES RELATED TO THE SOLUTION TO YOU AS THE COMPANY OR THE LEGAL ENTITY (REFERENCED BELOW AS “CUSTOMER”) THAT WILL BE UTILIZING THE DATA & MORE D&M SOLUTION ON THE CONDITION THAT YOU ACCEPT ALL THE TERMS OF THIS AGREEMENT (AS DEFINED BELOW). BY ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY OR ORGANIZATION, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY OR ORGANIZATION TO THIS AGREEMENT. CUSTOMER AND DATA & MORE MAY EACH ALSO BE REFERRED TO AS A “PARTY” AND TOGETHER, THE “PARTIES”.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE DATA & MORE D&M SOLUTION. THIS TERMS OF SERVICE (“AGREEMENT”) CONSTITUTES A LEGAL AND ENFORCEABLE CONTRACT BETWEEN THE CUSTOMER AND DATA & MORE. BY INDICATING CONSENT ELECTRONICALLY OR ACCESSING OR OTHERWISE USING THE DATA & MORE D&M SOLUTIONS, THE CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE CUSTOMER DOES NOT AGREE TO THIS AGREEMENT, DO NOT INDICATE CONSENT ELECTRONICALLY AND MAKE NO FURTHER USE OF THE DATA & MORE SOLUTION
BEFORE USING THE D&M SOLUTION, THE CUSTOMER MUST ALSO SIGN A DATA PROCESSING AGREEMENT BETWEEN THE CUSTOMER AND DATA & MORE – OR BETWEEN THE CLIENT AND A PARTNER WHO HAS SIGNED AND SUB-DATA PROCESS AGREEMENT WITH DATA AND MORE.
1. Access and Use
1.1. Access and Use. Subject to payment of all applicable fees outlined in the Order or payment by a Direct or Indirect Order through a Channel Partner (as appropriate) and the terms and conditions of this Agreement, Data & More grants the Customer, during the Demo or Subscription Term, a non-exclusive, non-transferable right to access and use (and permit Authorized Users to access and use) the D&M SOLUTION and applicable Documentation solely for Customers and its Affiliates’ internal business purposes in accordance with the Documentation and in the quantity specified in the applicable Order.
1.2. Access and Use Restrictions. Customer shall not (directly or indirectly): (a) copy or reproduce the SOLUTION or the Documentation except as permitted under this Agreement; (b) exceed the subscribed quantities, users or other entitlement measures of the D&M SOLUTIONs as set forth in the applicable Order; (c) remove or destroy any copyright, trademark or other proprietary marking or legends placed on or contained in the Documentation or Data & More Intellectual Property; (d) assign, sell, resell, sublicense, rent, lease, time-share, distribute or otherwise transfer the rights granted to Customer under this Agreement to any third party except as expressly set forth herein; (e) modify, reverse engineer or disassemble the SOLUTION; (f) except to the limited extent applicable laws specifically prohibit such restriction, decompile, attempt to derive the source code or underlying ideas or algorithms of any part of the SOLUTION, attempt to recreate the SOLUTION or use the SOLUTION for any competitive or benchmark purposes; (g) create, translate or otherwise prepare derivative works based upon the SOLUTION, Documentation or Data & More Intellectual Property; (h) interfere with or disrupt the integrity or performance of the SOLUTION; (i) attempt to gain unauthorized access to the SOLUTION or its related systems or networks, or perform unauthorized penetration testing on the SOLUTION; (j) use the SOLUTION in a manner that infringes on the Intellectual Property rights, publicity rights, or privacy rights of any third party. Fees for the SOLUTION are based on the use of the SOLUTION in a manner consistent with the Documentation.
1.3. Access to the SOLUTION. The customer is solely responsible for ensuring: (i) that only appropriate Authorized Users have access to the SOLUTION, (ii) that such Authorized Users have been informed in the proper use of the SOLUTION. Data & More reserves the right to refuse registration of, or to cancel, access that it reasonably believes to violate the terms and conditions outlined in this Agreement, in which case Data & More will promptly inform the Customer in writing of such refusal or cancellation.
1.4. Trial Services. If Customer is using a free trial, a proof of concept version, a demo version or using the SOLUTION on any other free-of-charge basis as specified in an Order including any related support services to the extent provided by Data & More in its sole discretion (collectively, “Trial Services”), Data & More makes such Trial Services available to Customer until the earlier of: (i) the end of the free trial, demo period or proof of concept period; (ii) the start date of any purchased version or subscription of such D&M SOLUTION; or (iii) written notice of termination from Data & More (“Trial Services Period”). Data & More grants Customer, during the Trial Services Period, a non-exclusive, non-transferable right to access and use the Trial Services for Customer’s internal evaluation purposes in accordance with the Documentation and subject to the access and use restrictions outlined in this Agreement. The Customer is authorized to use Trial Services only for SOLUTION evaluation and not for any business or productive purposes unless otherwise authorized in writing by Data & More. No guarantee features or functions of the Trial Services will be available or if available will be the same as in the general release version of the SOLUTION, or that the quality of the service will be the same as when in a Subscription based agreement and the Customer should therefore review the SOLUTION features and functions before making a purchase.
Data & More will not be obligated to provide Customer with any maintenance or support services concerning the Trial Services. Though the Customer using the Trial Services may send support issues to support@dataandmore.com, Data & More may not respond to these. Notwithstanding anything to the contrary, Data & More provides the Trial Services “as is” and “as available” without any warranties or representations of any kind. To the extent permitted by law, Data & More disclaims all implied warranties and representations, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, and non-infringement. The customer assumes all risks and all costs associated with using the Trial Services. The customer’s sole and exclusive remedy in case of any dissatisfaction or Data & More’s breach of the Agreement concerning such Trial Services is termination of the Trial Services. Any obligations on behalf of Data & More to indemnify, defend, or hold harmless under this Agreement do not apply to Customers using Trial Services.
1.5. Third Party Materials. The SOLUTION includes Third-Party Materials, use of which is subject to their respective OSS Licenses as indicated in the Documentation. Data & More warrants that including such Third-Party Materials in the SOLUTION will not prevent Customer from exercising the license rights provided to Customer herein regarding the SOLUTION or limit Customer’s ability to use the SOLUTION per the Documentation.
1.6. Support. As part of the subscription to the SOLUTION, Data & More shall make available technical support to the Customer by Data & More’s then-applicable support terms. Upon notification from Data & More, Customer shall promptly update any Agents on Customer systems that interact with the SOLUTION. Customer acknowledges and agrees that its failure to timely install such an update may result in disruptions to or failures of the SOLUTION, security risks, or suspension of Customer’s access to the SOLUTION, without any liability on the part of Data & More to Customer. The Customer and Data & More may sign a specific Service Level Agreement regarding extended service during the subscription period.
2. Payment and Taxes
2.1. Payment Terms. If The Customer uses a billable service, the Customer shall pay all invoices online or within thirty (30) days of the date of invoice, without any deduction or set-off (except for any amount disputed promptly and in writing by Customer in good faith), and payment will be sent to the address specified by Data & More. Any amounts arising about this Agreement not paid when due will be subject to a late charge of one and one-half percent (1 ½ %) per month on the unpaid balance or the maximum rate allowed by law, whichever is less. Without prejudice to Customer’s rights set out elsewhere in this Agreement, all fees are non-refundable and payable in advance. Data & More may invoice for purchases of Data Compliance services upon delivery. Data & More and Customer may agree in writing to alternate payment terms that supersede the above payment terms.
2.2. Taxes. The fees and charges covered by this Agreement are exclusive of any Indirect Taxes imposed or levied, currently or in the future, based on applicable legislation, on the SOLUTION. Unless otherwise agreed upon between the Parties, the Customer will be liable for compliance with reporting and payment of such Indirect Taxes in its tax jurisdiction. Data & More shall include the Indirect Taxes on its invoice to Customer and remit such Indirect Taxes collected to the relevant authority if applicable law requires. For the avoidance of doubt, Data & More will be responsible for direct taxes imposed on Data & More’s net income or gross receipts in its tax jurisdiction.
3. Rights in Intellectual Property
3.1. Intellectual Property. Except for the rights granted in this Agreement, all rights, title, and interest in and to the SOLUTION, Documentation, and Data & More Intellectual Property are hereby reserved by Data & More, its Affiliates or licensors. Except as provided for herein, all rights, title, and interest in and to Customer Intellectual Property are hereby reserved by Customer, its Affiliates or licensors. Nothing in this Agreement shall transfer ownership of any Intellectual Property rights from one Party to the other.
3.2. Usage Data and Suggestions. Data & More shall be permitted to collect and use the Usage Data for its reasonable business purposes and for Customer’s benefit. In the event Data & More wishes to disclose the Usage Data or any part thereof to third parties (either during the Subscription Term or thereafter), such data shall be anonymized and/or presented in the aggregate so that it will not identify Customer or its Authorized Users. The preceding shall not limit Data & More’s confidentiality obligations in any way pursuant to section 4 below. To the extent that Customer provides Data & More with Suggestions, such Suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon Data & More pursuant to this Agreement, and may be implemented by Data & More in its sole discretion. Customer acknowledges that any Data & More products or materials incorporating any such Suggestions shall be the sole and exclusive property of Data & More.
4. Confidentiality
4.1. Confidential Information. The Parties acknowledge that each may disclose valuable confidential and proprietary information to the other Party. The receiving Party may only use the disclosing Party’s Confidential Information to fulfil the purposes of this Agreement. The receiving Party will protect the disclosing Party’s Confidential Information by using at least the same degree of care as the receiving Party uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorised use, dissemination, disclosure or publication of such Confidential Information. Notwithstanding the foregoing, the receiving Party may disclose Confidential Information to its (and its Affiliates) employees, advisors, consultants, and agents on a need-to-know basis and provided that such party is bound by obligations of confidentiality substantially similar to those contained herein. This section 4 supersedes any and all prior or contemporaneous understandings and agreements, whether written or oral, between the Parties with respect to Confidential Information and is a complete and exclusive statement thereof. Additionally, the obligations set forth in section 5.3 and not this section 4 herein apply to Customer Data.
4.2. Exceptions. Information will not be deemed Confidential Information if it: (i) is known to the receiving Party prior to receipt from the disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (ii) becomes known (independently of disclosure by the disclosing Party) to the receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing Party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving Party; or (iv) is independently developed by the receiving Party without use of or reliance upon the disclosing Party’s Confidential Information, and the receiving Party can provide evidence to that effect. The receiving Party may disclose Confidential Information pursuant to the requirements of a court, governmental agency or by operation of law but shall (to the extent permissible by law) limit such disclosure to only the information requested and give the disclosing Party prior written notice sufficient to permit the disclosing Party to contest such disclosure.
4.3. Advertising and Publicity. Neither Party shall make or permit to be made any public announcement concerning the existence, subject matter or terms of this Agreement or relationship between the Parties without the prior written consent of the other Party except as expressly permitted in this section.
Customer grants Data & More and its Affiliates during the term of the Agreement the right to use Customer’s trade names, logos, and symbols (“Customer Marks”) in its public promotional materials and communications for the sole purpose of identifying Customer as a Data & More customer. Data & More shall not modify the Customer Marks or display the Customer Marks any larger or more prominently on its promotional materials than the names, logos, or symbols of other Data & More customers. The preceding promotional materials and communications may be created, displayed, and reproduced without Customer’s review, provided they comply with this section and any Customer Marks usage guidelines provided by Customer to Data & More in writing. Data & More and the customer may, in writing, agree on a restricted use of trade names, logos, and symbols (“Customer Marks”) compared to the standard described in these terms.
5. Security and Processing of Personal Data
5.1. Customer Data Content. As between Data & More and Customer, Customer is solely responsible for: (i) the content, quality and accuracy of Customer Data as made available by Customer and by Authorized Users; (ii) providing notice to Authorized Users with regards to how Customer Data will be collected and used for the purpose of the SOLUTION; (iii) ensuring Customer has a valid legal basis for processing Customer Data and for sharing Customer Data with Data & More (to the extent applicable); and (iv) ensuring that the Customer Data as made available by Customer complies with applicable laws and regulations including Applicable Data Protection Laws.
5.2. Data Protection Laws. The Parties shall comply with their respective obligations under the Applicable Data Protection Laws. In particular, if the Customer is established in the European Economic Area (“EEA”), in the United Kingdom (“UK”) or in California, or will, in connection with the Data Compliance services, provide Data & More with personnel data relating to an individual located within the EEA, the UK or California, the Parties shall comply with the Data Processing Addendum.
5.3. Security of Customer Data. Data & More shall: (i) ensure that it has in place appropriate administrative, physical and technical measures designed to protect the security and confidentiality of Customer Data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties; (ii) have appropriate measures in place designed to protect the security and confidentiality of Customer Data; and (iii) access and use the Customer Data solely to perform its obligations under the terms of this Agreement, and as otherwise expressly permitted in this Agreement. Data & More shall not materially diminish its security controls with respect to Customer Data during a particular term.
5.4 Secrutiy incidents. Data & More prioritises security in its operations. To uphold this standard, each technical staff member in Datra & More is empowered and responsible for independently initiating a complete shutdown of all servers and services if they identify any security threats potentially jeopardising customer data. In alignment with this practice, Data & More reserves the right to suspend operations of their Compliance servers for a maximum period of 30 days. Customers will not receive any form of compensation due to the shutdown, underscoring the principle that commercial interests should not influence security-related decisions. Notifications regarding any shutdowns will be posted on the website. https://compliance.dataandmore.com/operations
5.5 No penetration testing or hacking by unauthorised third parties. The Customer and any employees or third parties acting on behalf of the Customer agree to refrain from any attempts to infiltrate, hack, breach, or otherwise compromise the integrity, security, or functionality of the software, services, or related systems and networks provided by Data & More under this Agreement. This prohibition includes but is not limited to, unauthorised access, interference, intrusion, or penetration of the software, services, and any associated networks or systems, as well as any attempts to reverse engineer, decrypt, disassemble, or decompile the software, or any part thereof.
The Purchaser acknowledges that any such unauthorised access or hacking activities are illegal, unethical, and in violation of this Agreement and agrees to immediately notify Data & More of any known or suspected unauthorised access or security breaches.
In case of a breach of this clause, Data & More reserves the right to terminate this Agreement immediately, without prior notice, and seek all available legal remedies, including damages, injunctive relief, and reimbursement of legal costs. Additionally, the Purchaser may be liable for any damages incurred by Data & More or any third parties due to unauthorised access or hacking activities.
6. Warranties
6.1. Limited SOLUTION Warranty. During the applicable Subscription Term, Data & More warrants that: (a) the SOLUTION will perform in substantial conformity with the Documentation; and (b) Data & More will use industry-standard measures designed to detect viruses, worms, Trojan horses or other unintended malicious or destructive code in the SOLUTION. The foregoing warranties are void if the failure of the SOLUTION has resulted from negligence, error, or misuse of the SOLUTION (including use not in accordance with the Documentation) by Customer, the Authorized User, or by anyone other than Data & More. Without derogating from Data & More’s obligations under this Agreement, Customer warrants that it shall take and maintain appropriate steps within its control to protect the confidentiality, integrity, and security of its Confidential Information and Customer Data, including (i) operating the SOLUTION in accordance with the Documentation and applicable law and; and (ii) dedicating reasonably adequate personnel and resources to implement and maintain the security controls set forth in the Documentation. The Customer will be responsible for the acts and omissions of its Authorized Users.
6.2. Compliance with Law. Each Party shall comply with all applicable laws and regulations in connection with the performance of its obligations and the exercise of its rights under this Agreement.
6.3. Disclaimer. Any and all warranties, expressed, incorporated or implied, are limited to the extent and period mentioned in this Agreement. To the maximum extent allowed by applicable law, Data & More disclaims (and disclaims on behalf of its licensors and/or contributors to any Third-Party Materials) all other warranties, conditions and other terms, whether express or implied or incorporated into this Agreement by statute, common law or otherwise, including the implied conditions and warranties of merchantability and fitness for a particular purpose. Data & More will have no liability for delays, failures or losses attributable or related in any way to the use or implementation of third-party software or services not provided by Data & More.
7. Indemnification
7.1. Infringement Indemnity. Data & More shall defend and indemnify Customer and/or its Affiliates and their officers, directors and employees against all third-party claims, suits and proceedings resulting from the violation, misappropriation, or infringement of such third party’s patent, copyright, trademark or trade secret caused by Customer’s use of the SOLUTION in accordance with this Agreement and the Documentation, and all directly related losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees).
7.2. Process. Each Party’s defense and indemnification obligations herein will become effective upon, and are subject to: (a) the indemnified Party’s prompt notification to the indemnifying Party of any claims in writing; and (b) the indemnified Party providing the indemnifying Party with full and complete control, authority and information for the defense of the claim, provided that the indemnifying Party will have no authority to enter into any settlement or admission of the indemnified Party’s wrongdoing on behalf of the indemnified Party without the indemnified Party’s prior written consent (not to be unreasonably withheld). At the indemnifying Party’s request, the indemnified Party shall reasonably cooperate with the indemnifying Party in defending or settling any claim.
7.3. Exclusions. The above Data & More obligations to defend and indemnify will not apply in the event that a claim arises from or relates to: (a) use of the SOLUTION not in accordance with the Documentation and this Agreement; (b) Customer’s use of the SOLUTION in violation of applicable laws; (c) any modification, alteration or conversion of the SOLUTION not created or approved in writing by Data & More; (d) any combination or use of the SOLUTION with any computer, hardware, software, data or service not required by the Documentation; (e) Data & More’s compliance with specifications, requirements or requests of Customer; or (f) Customer’s gross negligence or willful misconduct.
7.4. Remedies. If the SOLUTION becomes, or Data & More reasonably determines that the SOLUTION is likely to become, subject to a claim of infringement for which Data & More must indemnify Customer as described above, Data & More may at its option and expense: (a) procure for Customer the right to continue to access and use the SOLUTION, (b) replace or modify the SOLUTION so that it becomes non-infringing without causing a material adverse effect on the functionality provided by the infringing SOLUTION, or (c) if neither of the preceding options is available in a timely manner on commercially reasonable terms, terminate the affected Order and provide Customer with a pro-rata refund of any unused pre-paid fees paid for the period following termination as calculated on a monthly basis for the affected SOLUTION.
This section 7 states the sole liability of Data & More and the exclusive remedy of Customer concerning any indemnification claims arising out of or related to this Agreement.
8. Limitation of Liability
8.1. Maximum Liability. Except for liability caused by Data & More’s intellectual property infringement indemnification obligations in section 7.1, Customer’s data infringement indemnity in section 7.2, and Customer’s payment obligations herein, in no event will either Party’s maximum aggregate liability arising out of or related to this Agreement, regardless of the cause of action and whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, exceed the greater of: a) the total amount paid or payable to Data & More under this Agreement during the twelve (12) month period preceding the date of the initial claim.
8.2. No Consequential Damages. Neither Party will have any liability to the other Party for any loss of profits or revenues, loss of goodwill, or for any indirect, special, incidental, consequential or punitive damages arising out of, or in connection with this Agreement; however, caused, whether in contract, tort (including negligence), warranty, indemnity or any other legal theory, and whether or not the Party has been advised of the possibility of such damages.
8.3. Construction. This Agreement is not intended to and will not be construed as excluding or limiting any liability which cannot be limited or excluded by applicable law, including liability for (a) death or bodily injury caused by a Party’s negligence; or (b) gross negligence or fraud.
9. Assignment.
Neither Party may assign any of its rights or obligations under this Agreement without the other Party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, either Party may assign any of its rights and obligations under this Agreement to a successor in interest in the event of a merger or acquisition or to an Affiliate, upon written notice to the other Party.
10. Restricted Rights and Export Control
10.1. Export Control. The exportation of the SOLUTION and Documentation and all related technology and information are subject to EU. laws and regulations about export controls.
11. Professional Services.
The Customer may separately purchase from Data & More professional services in relation to the SOLUTION as may be generally available by Data & More to its customers, pursuant to Data & More’s then applicable professional services terms.
12. Term and Termination
12.1. Term. This Agreement will be effective upon signature by both Parties and shall remain in force during the applicable Subscription Term of the SOLUTION unless or until terminated by either Party according to this section.
12.2. Termination or Breach of Contract Clause. Either Party may terminate this Agreement immediately upon notice to the other Party if the other Party: (i) Breach of Contract Clause or materially breaches this Agreement and fails to remedy such breach within thirty (30) days after receiving written notice of the breach from the other Party; or (ii) commences bankruptcy or Dissolution proceedings, has a receiver appointed for a substantial part of its assets or ceases to operate in the ordinary course of business. In addition, a Party may terminate this Agreement, a SOW, or an Order , in whole or in part, or cease provision of the D&M SOLUTION if required to comply with applicable law or regulation, and such termination will not constitute a breach of this Agreement by the terminating Party. Data & More reserves the right to suspend Customer’s access to the applicable SOLUTION upon 30 days’ written notice to Customer if: (a) an invoice is more than sixty (60) days past due; or (b) if there is an uncured material breach of this Agreement. Data & More will promptly reinstate Customer’s access and use of the SOLUTION/provision of the Professional Services once the issue has been resolved. Upon termination or expiration of the Agreement or an Order, (x) any accrued rights and obligations will survive; (y) all outstanding fees and other charges under the Agreement or Order (as applicable) will become immediately due and payable, and (z) Customer will have no further right to access or use the applicable SOLUTION or professional services. If Customer is converting its perpetual on-premise software licenses to a SaaS Product, the applicable previously licensed perpetual on-premise software licenses will be terminated, along with any associated maintenance services, in accordance with the terms of the applicable Order.
12.3. Effects of Termination/Expiration. Upon termination or expiration of an applicable Subscription Term: (i) Customer will have no further right to access or use the SOLUTION; and (ii) each Party shall within thirty (30) days after written request return or destroy any tangible Confidential Information of the other Party within its possession or control that is not contained on the SOLUTION. Any Customer Data contained on the SOLUTION will be deleted within thirty (30) days of termination/expiration of Customer’s Subscription Term. Customer acknowledges that it is responsible for exporting any Customer Data to which Customer desires continued access after termination/expiration, and Data & More shall have no liability for any failure of Customer to retrieve such Customer Data and no obligation to store or retain any such Customer Data after such thirty (30) day period. Following termination of the SOLUTION, Data & More may immediately deactivate Customer’s account. Any accrued rights and obligations will survive termination.
13. Miscellaneous
13.1. Independent Contractors. Nothing in this Agreement will be construed to imply a joint venture, partnership or principal-agent relationship between Data & More and Customer, and neither Party will have the right, power or authority to obligate or bind the other in any manner whatsoever.
13.2. Notices. All Notices will be in writing and will be deemed to have been duly given: (a) when delivered by hand; (b) three (3) days after being sent by registered or certified mail, return receipt requested and postage prepaid; (c) one (1) day after deposit with a nationally recognized overnight delivery or express courier service; or (d) when provided via email when the sender has received a delivery/read receipt. Notices for Data & More should be sent to the following addresses: (i) for physical Notices the address specified for Data & More and; (ii) for electronic Notices to: info@dataandmore.com.
13.3. Force Majeure. With the exception of Customer’s payment obligations herein, neither Party will be liable to the other Party for any delay or failure to perform which is due to fire, pandemic, virus, epidemic, travel advisories as to health, security and/or terrorism, flood, lockout, transportation delay, war, acts of God, governmental rule or order, strikes or other labor difficulties, or other causes beyond its reasonable control. However, in such an event, both Parties will resume performance promptly after the cause of such delay or failure has been removed.
13.4. Entire Agreement, Execution, and Modification. This Agreement supersedes all prior agreements and representations between the Parties regarding the subject matter of this Agreement. The terms and conditions contained in any Order issued by Customer will be of no force or effect, unless the Order is accepted by Data & More. If Data & More makes a material change to any of the foregoing, Data & More will inform Customer by e-mail to the e-mail address(es) noted on the Order (or subsequently designated by Customer in writing as a contact for notifications from Data & More), or through a banner or other prominent notice within the SOLUTION, or through the Data & More support platform. If Customer does not agree to the change, then Customer will remain governed by the most recent terms of service applicable to Customer until the end of the then-current year of the Subscription Term and the updated terms shall apply upon the commencement of the subsequent Subscription Term.
13.5. Severability and Waiver. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Should any term or provision of this Agreement be declared void or unenforceable by any court of competent jurisdiction, the Parties intend that a substitute provision will be added to this Agreement that, to the greatest extent possible, achieves the intended commercial result of the original provision. The failure of either Party to enforce any rights granted to it hereunder or to take action against the other Party in the event of any breach hereunder will not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
14. Definitions and Interpretation.
The following definitions and rules of interpretation apply in this Agreement:
“Affiliate” means a company controlling, controlled by, or under common control with a Party (an entity will be deemed to have control if it owns over 50% of another entity).
“Agents” means Data & More’s proprietary software, systems and locally-installed software agents and connectors that interact with the SOLUTION as may be provided by Data & More in connection with the SOLUTION.
“Applicable Data Protection Laws” means the EU General Data Protection Regulation (2016/679) (“GDPR”), any applicable laws of EU member states implementing the GDPR (including the UK Data Protection Act 2018), any applicable privacy or data protection laws of Canada, and the California Consumer Privacy Act, in each case as amended, consolidated, re-enacted or replaced from time to time and only if and insofar as they apply.
“Authorized Users” means employees, agents, consultants, contractors, or vendors authorized by Customer to use the SOLUTION solely for the internal use of Customer and its Affiliates, subject to the terms and conditions of this Agreement.
“Channel Partner” means a third-party business entity that Data & More has appointed as an approved partner to as applicable, distribute, re-sell and support the SOLUTION.
“Confidentiality exceptions” refer to specific situations or conditions under which confidential information can be legally and ethically disclosed without the consent of the person who provided the information or to whom the information pertains. These exceptions are often outlined in laws, professional codes of ethics, or organizational policies, and commonly include scenarios where there is a risk of harm to the individual or others, legal requirements for disclosure (such as court orders), or when the information is necessary for public health or safety reasons.
“Confidentiality in advertising and publicity” refers to the practice of protecting sensitive information from being disclosed to unauthorized parties. This includes safeguarding personal data, proprietary content, and strategic plans related to advertising campaigns to ensure that privacy and competitive advantages are maintained.
- Advertising involves the creation and dissemination of promotional materials to attract interest in products, services, or ideas. It aims to inform, persuade, and remind the target audience through various media channels, enhancing brand visibility and driving consumer behaviour.
- Publicity is the public visibility or awareness for any product, service, or organization. It’s often generated through media coverage and does not typically require direct payment. Publicity can result from marketing efforts, news reports, social media, and other forms of communication, contributing to the public’s perception of the subject in question.
“Confidential Information” means all information provided by the disclosing Party to the receiving Party concerning the disclosing Party or its Affiliates’ business, products or services that is not generally known to the public, including information relating to customers, vendors, trade secrets, prices, products, services, computer programs and other intellectual property and any other information which a Party should reasonably understand to be considered Confidential Information whether or not such information is marked “Confidential” or contains such similar legend by the disclosing Party at the time of disclosure.
“Customer Data” means all data and/or content uploaded to the SOLUTION by Customer (including where applicable Authorized Users), and in all data derived from it. For the avoidance of doubt, Customer Data does not include Usage Data.
“Data & More” means the Data & More legal entity company registration number specified in the written contract.
“D&M SOLUTION” and “SOLUTION” and “SOLUTIONS” are used interchangeably and mean the software specified in the Order.
“Documentation” means the user guides, installation documents, and specifications for the SOLUTION that are made available from time to time by Data & More in electronic or tangible form and found at docs.Data & More.com, including the documentation located therein under the ‘Security’ section for the relevant SOLUTION, but excluding any sales or marketing materials.
“Entire Agreement” refers to a clause typically found in written contracts stating that the document contains all terms of the agreement and appendixes between the parties, superseding any prior discussions, agreements, or representations. This clause aims to prevent the parties from relying on any statements or agreements not explicitly included in the contract.
“Execution” refers to the process of completing and delivering the specific outputs or products that are required to fulfil the objectives of a project or task. This involves the planning, development, testing, and finalization of these deliverables to meet the established criteria and stakeholder expectations within the agreed-upon timeframe and budget.
“Indirect Taxes” means excise, sales, use, gross-turnover, value added, goods and services tax or other similar types of indirect taxes on turnover and/or revenues, duties, customs or tariffs (however designated, levied or based and whether foreign or domestic, federal, state or province).
“Intellectual Property” means a Party’s proprietary material, technology, or processes (excluding the SOLUTION and Documentation), including services, software tools, proprietary framework and methodology, hardware designs, algorithms, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned or licensed by a third party) and any derivatives, improvements, enhancements or extensions of such Intellectual Property conceived, reduced to practice, or developed.
“Modification” refers to the process of making changes, adjustments, or enhancements to a project’s output or outcomes after the initial specifications have been agreed upon. This may involve altering features, functions, scope, or specifications of the product, service, or result to better meet the project requirements, stakeholder expectations, or to accommodate unforeseen issues or opportunities that arise during the project’s lifecycle.
“Notice” means any notice or other communication required or permitted under this Agreement.
“Order” means Data & More’s quote accepted by Customer via Customer’s purchase order or other ordering document submitted to Data & More (directly or indirectly through a Channel Partner) to order Data & More’s D&M SOLUTION, which references the SOLUTION, pricing, payment terms, quantities, expiration date and other applicable terms set forth in an applicable Data & More quote or ordering document.
“OSS Licenses” means the respective open source licenses that the Third-Party Materials are subject to.
“Subscription Term” means the period during which Customer is subscribed to the SOLUTION, as specified in an Order and which shall begin upon delivery of the SOLUTION.
“Suggestions” means any ideas or suggestions for improvements, new features, functionalities, corrections, enhancements or changes to the SOLUTION suggested by Customer to Data & More.
“Third-Party Materials” means open-source software programs that are made available by third parties under their respective OSS Licenses.
“Indirect Order” means excise, sales, use, gross-turnover, value added, goods and services tax or other similar types of indirect taxes on turnover and/or revenues, duties, customs or tariffs (however designated, levied or based and whether foreign or domestic, federal, state or province).
“Usage Data” means data generated in connection with the Customer’s access, use and configuration of the SOLUTION and data derived from it (e.g., types of applications or accounts utilized or interacting with the SOLUTION). Usage Data is not customer data.
Any words following the terms including or include shall be regarded as examples only and not construed as an exhaustive list.
Should Customer have any questions concerning this Agreement, or if Customer desires to contact Data & More for any reason, please e-mail us at: info@dataandmore.com.