Master Subscription Agreement

 

This Master Subscription Agreement (the “Agreement”) is entered into between xorlab AG, a Swiss corporation with its place of business at Binzmühlestrasse 170d, 8050 Zurich, Switzerland (“xorlab”, “We”, “Our”, “Us”) and the customer that executes a purchase order as described below (the “Customer”, “You”, “Your”) on the date xorlab and Customer (each a “Party” and together the “Parties”) enter into such purchase order (the “Purchase Order”) which references to this Agreement (the “Effective Date”).

By executing a Purchase Order that references to this Agreement, Customer agrees to the terms of this Agreement. If the individual accepting this Agreement is accepting on behalf of a company or another legal entity, such individual represents and warrants that it has the authority to bind such legal entity to these terms and conditions. If the individual accepting this Agreement does not have such authority, or does not agree with these terms and conditions on behalf of the Customer, such individual must not accept this Agreement and Customer may not use the Products and Services.

 

1. Context

xorlab has developed a corporate communications defense platform that can be used as a software-as-a-service product on a subscription basis. xorlab has agreed to provide and Customer has agreed to subscribe to and pay for xorlab’s Products and Services as further defined in the applicable Purchase Order and subject to the terms and conditions in this Agreement. The Customer agrees that the Products and Services to be provided under this Agreement are subject to certain technical requirements on the side of Customer which have been discussed by the Parties and that xorlab may not be in a position to provide the Products or Services if Customer does not comply with such technical requirements.

 

2. Definitions, Parts of the Agreement and Hierarchy

2.1. DEFINITIONS. Definitions used in this Agreement are set out in Annex 1.

2.2. INTERPRETATION. In this Agreement, unless the context requires otherwise, (i) the headings are inserted for ease of reference only and shall not affect the construction or interpretation of this Agreement, (ii) references to one gender include all genders and (iii) words in the singular shall include the plural and vice versa.

2.3. PARTS OF THIS AGREEMENT AND HIERARCHY. Annex 1 (Definitions), Annex 2 (Data Processing Agreement) and Annex 3 (Service Level Agreement) to this Agreement and any Purchase Order as further described below shall be integral parts to this Agreement. In case of discrepancies between provisions of the Agreement, the following hierarchy shall apply: (i) body of this Agreement, (ii) Data Processing Agreement, (iii) Service Level Agreement, and (iv) any Purchase Order, unless explicitly otherwise provided in the specific Annex or Purchase Order.

2.4. PURCHASE ORDER. Each Purchase Order according to this Agreement may only be agreed between and changed by both Parties in writing, including emails and other electronic messages. The Purchase Order will particularly identify: (i) the Products, the Subscription Term, the Starting Date, the domain(s) associated with Your use of Products, number of protected email accounts, or other scope of use parameters and (ii) for paid Purchase Orders the amount or rate You will be charged, the billing and renewal terms, applicable currency, and form of payment. Purchase Orders may also include Additional Services and No-Charge Products.

 

3. Scope of this Agreement, Grant of a License and Provision of Services

3.1. PRODUCTS, SUPPORT AND ADDITIONAL SERVICES. This Agreement essentially governs Our Products, related Support, and Additional Services.

3.2. GRANT OF A LICENSE. We herewith grant You a limited, not transferable, not sub-licensable and non-exclusive license to use the Products in accordance with this Agreement and the applicable Purchase Order for the term of such Purchase Order.

3.3. PROVISION OF SERVICES. Our Services to be provided under this Agreement and the applicable Purchase Order may include: (i) the support and maintenance services as set out in Our Service Level Agreement and other parts of this Agreement and (ii) any Additional Services as set out in section 4 below. You acknowledge and accept that: (i) notwithstanding any other provision of this Agreement We provide the Services according to the Service Level Agreement on a reasonable effort basis only, unless explicitly otherwise provided in the respective Purchase Order; and (ii) the remedies of You in case of one or several violations of this Agreement by Us in providing the Services hereunder are limited to the right to terminate the applicable Purchase Order with immediate effect according to section 13.4 below and to claim for damages in accordance with this Agreement if the respective requirements are fulfilled.

3.4. THIRD PARTIES. We are entitled to consult third parties (including but not limited to sub-processors) in order to perform Our obligations under this Agreement without Your consent (the “Third Party”), provided that (i) We notify You of any change of a Third Parties and (ii) We ensure that each Third Party enters into a non-disclosure agreement with similar provisions than those set out in this Agreement. Any Third Party set out in this Agreement (see for example Annex 2) shall be deemed to be accepted by You. In case a Third Party processes personal data in the sense of the applicable data protection laws, Our Data Processing Agreement according to Annex 2 shall apply.

 

4. Additional Services

4.1. ADDITIONAL SERVICES. Subject to and under the conditions of this Agreement, You may purchase Additional Services that We will provide to You pursuant to the applicable Purchase Order. Additional Services may be subject to additional terms as specified by us.

4.2. OUR DELIVERABLES. We will retain all right, title and interest in and to Our Deliverables. You may use any of Our Deliverables provided to You only in connection with the Products, subject to the same usage rights and restrictions as for the Products. For clarity, Our Deliverables are not considered Products, and any Products are not considered to be Our Deliverables.

4.3. YOUR MATERIALS. You agree to provide us with access to Your Materials as reasonably necessary for Our provision of the Products and Additional Services. If You do not provide us with timely access to Your Materials, Our performance of Additional Services will be excused until You do so. You retain Your rights in Your Materials, subject to Our ownership of any Products, any of Our Deliverables or any of Our technology underlying Your Materials. We will use Your Materials solely for purposes of performing the Additional Services and other obligation under this Agreement. You represent and warrant that You have all necessary rights in Your Materials to provide them to us for such purposes.

4.4. TRAINING NOT COVERED. Your purchase, and Our provision, of Training is subject to separate agreements in the applicable Purchase Order.

 

5. Administration of Products

5.1. ADMINISTRATORS. Through the Products, You may be able to specify certain Authorized Users as Administrators, who will have important rights and controls over Your use of Products and Authorized User Accounts. This may include making Purchase Orders for Products; creating, de-provisioning, monitoring or modifying Authorized User Accounts, and setting Authorized User usage permissions; and managing access to Your Data by Authorized Users or others. Without limiting section 5.4 below, which fully applies to Administrators, You are responsible for whom You allow to become Administrators and any actions they take. You agree that Our responsibilities do not extend to the internal management or administration of the Products for You.

5.2. THIRD PARTIES AS ADMINISTRATORS. If You provide third parties with Administrator rights, it remains Your obligation that the respective third party adheres to this Agreement. As between You and Us, You are solely responsible for any access by the third party to Your accounts and Your other Authorized User Accounts.

5.3. CONSENTS. You will obtain and maintain all required consents from Authorized Users and any concerned data subject under this Agreement to allow: (i) Administrators to have the access described in this Agreement (including the Data Processing Agreement); (ii) xorlab’s provision of the Products to Administrators and Authorized Users; and (iii) xorlab’s performance of any obligations under this Agreement.

5.4. RESPONSIBILITY FOR AUTHORIZED USERS. You are responsible for all actions and omissions of Your Authorized Users.

5.5. CREDENTIALS. You must require that all Authorized Users keep their user IDs and passwords for the Products strictly confidential and do not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using Authorized User Accounts and passwords, and You agree to immediately notify us of any unauthorized use of which You become aware.

 

6. Rights and Restrictions in relation to Your Products

6.1. ACCESS TO PRODUCTS. During the applicable Subscription Term for the concerned Product, You may access and use the Products for Your own business purposes in accordance with this Agreement and the applicable Purchase Order. This includes the right, as part of Your authorized use of the Products, to download and use the client software associated with the Products. The rights granted to You in this section 6.1 are non-exclusive, non-sublicensable and non-transferable. We will deliver the login instructions for Products to Your account or through other reasonable means no later than at the Starting Date as set out in the applicable Purchase Order. All deliveries under this Agreement will be electronic.

6.2. SUPPORT. During the Subscription Term, We will provide Support for the Products in accordance with this Agreement and the applicable Purchase Order.

6.3. RESTRICTIONS. Except as otherwise expressly permitted in this Agreement, You will not: (a) reproduce, modify, adapt or create derivative works of the Products; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the Products to a third party; (c) use the Products for the benefit of any third party; (d) incorporate any Products into a product or service You provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the Products intended to limit Your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Products, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in any Product; (h) use the Products for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Products; or (j) encourage or assist any third party to do any of the foregoing.

 

7. Security, Data Privacy and Rights in Your Data

7.1. SECURITY. We implement and maintain physical, technical and administrative security measures designed to protect Your Data from unauthorized access, destruction, use, modification, or disclosure as set forth in the Data Processing Agreement.

7.2. PRIVACY. We collect certain data and information about You and Your Authorized Users in connection with Your and Your Authorized Users’ use of the Products as further described in the Data Processing Agreement.

7.3. USING YOUR DATA TO PROVIDE PRODUCTS TO YOU. You retain all right, title and interest in and to Your Data in the form submitted to the Products. Subject to this Agreement, and solely to the extent necessary to provide the Products to You, You grant us a worldwide, non-exclusive license to access, use, process, copy, distribute, perform, export, display and otherwise process Your Data to the extent necessary to perform Our obligations under this Agreement for the term of this Agreement. You agree that We may access Your accounts, Authorized User Accounts, and Your Products in order to respond to Your support requests and perform other obligations of Us under this Agreement.

7.4. YOUR DATA COMPLIANCE OBLIGATIONS. You and Your use of Products and Services (including use by Your Authorized Users), and We, and Our provision of the Products and Services must always comply with this Agreement and all applicable laws. You represent and warrant that: (i) You have obtained all necessary rights and permissions to submit all Your Data to the Products and to grant the rights granted to us in this Agreement; and (ii) Your Data and its submission and use as You authorize in this Agreement will not violate any applicable laws, any third-party intellectual property, privacy, publicity or other rights, and any of Your or third-party policies or terms governing Your Data. Other than Our express obligations under this section 7 and the Data Processing Agreement according to Annex 2, We assume no responsibility or liability for Your Data, and You are solely responsible for Your Data and the consequences of submitting and using it with the Products.

7.5. PROHIBITED SENSITIVE PERSONAL INFORMATION. You will not submit to the Products (or use the Products to collect) any Sensitive Personal Information unless its processing is expressly supported as a feature of the applicable Product. Notwithstanding any other provision to the contrary, We have no liability under this Agreement for Sensitive Personal Information submitted in violation of the foregoing.

 

8. Fees, Renewals, and Payment

8.1. FEES. Except for No-Charge Products and unless otherwise stated in the applicable Purchase Order, all Products are offered on an annual subscription basis. You shall pay to Us the fees indicated in the applicable Order (the "Fees") as they become due plus all related taxes for the Products and the Services provided by Us under this Agreement. The Fees shall not include VAT, sales tax, or any other taxes which have to be paid by You additionally according to the applicable laws, if any and applicable.

8.2. RENEWALS. Except as otherwise specified in the applicable Purchase Order and unless either Party cancels Your subscription with notice period of at least thirty (30) days prior to the end of the applicable running Subscription Term, Your subscription with regard to each applicable Purchase Order will automatically renew for another Subscription Term of a period of one year. A notice of non-renewal shall only be valid if We notify You via Your email address provided to Us or if You notify Us via support@xorlab.com. Cancelling Your subscription means that You will not be charged for the next billing cycle, but You will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable Product continuing to be offered and will be charged at the then-current rates. xorlab may increase subscription rates only for new subscription periods with notice period of at least thirty (30) days prior to the end of the applicable running Subscription Term.

8.3. INCREASE OR DECREASE OF USE AND USERS. You may increase or decrease the use of Your Products by for example adding Authorized Users, provided that (i) You inform us in advance of such intended change, (ii) any increase or decrease of Authorized Users is only possible in increments of 100 Authorized Users, and (iii) the Parties have entered into a new Purchase Order governing the increase or decrease of use. It is Your responsibility alone to inform Us reasonably early prior to an intended change of Your use of Products in order to have a new Purchase Order in place prior to any change. Information according to this section 8.3 to Us must be provided by email to support@xorlab.com.

8.4. REPORTING DUTIES. You will inform Us every calendar year in January and June regarding Your use of the Products (including the number of Authorized End Users) by email to support@xorlab.com.

8.5. PAYMENT. You will pay all fees in accordance with each Purchase Order by the due dates and in the currency specified in the applicable Purchase Order. If a PO number is required in order for an invoice to be paid, then You must provide such PO number to Us. For Additional Services provided at any non-xorlab location, unless otherwise specified in the applicable Purchase Order, You will reimburse Us for Our pre-approved travel, lodging and meal expenses, which We may charge as incurred. All amounts are non-refundable, non-cancelable and non-creditable unless specifically otherwise provided in this Agreement. You agree that We may bill Your credit card or similar in the context of renewals, additional users, and other services to be provided under this Agreement, and for expenses, and unpaid fees, as applicable.

8.6. LATE PAYMENT. Without prejudice to any other rights We may have, We shall be entitled to charge You interest at the rate of 5% per annum on any overdue Fees from the due date until the date of receipt of payment by Us. We may fully or partly suspend or terminate (i) access to the Products and/or (ii) the provision of some or all Services unless all Fees are paid timely.

8.7. UNUSED PERIODS. Unless otherwise provided for in this Agreement, all Fees are non-refundable and there are no refunds or credits for unused periods.

 

9. No Contingencies on other Products of Future Functionality

You acknowledge that the Products and Additional Services referenced in a Purchase Order are being purchased separately from any of Our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of Our other products (and for clarity, any purchases of Products and Additional Services are separate and not contingent on each other, even if listed on the same Purchase Order). You agree that Your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Products beyond the current Subscription Term), or dependent on any oral or written public comments We make regarding future functionality or features.

 

10. Evaluations, Trials, and Betas

10.1. NO-CHARGE PRODUCTS. We may offer certain Products and Services to You at no charge, including trial use of Our Products (collectively, “No-Charge Products”). Your use of No-Charge Products is subject to any additional terms that We specify and is only permitted during the Subscription Term We designate (or, if not designated, until terminated in accordance with this Agreement). Except as otherwise set forth in this section 10 or other parts of this Agreement, the terms and conditions of this Agreement governing Products fully apply to No-Charge Products.

10.2. SPECIAL PROVISIONS. We may modify or terminate Your right to use No-Charge Products at any time and for any reason in Our sole discretion, without liability to You. You understand that any pre-release and beta Products or features within generally available Products, that We make available (collectively, “Beta Versions”), are still under development, may be inoperable or incomplete and are likely to contain more errors and bugs than generally available Products. We make no promises and provide no warranties that any Beta Versions will run according to specifications or will ever be made generally available. In some circumstances, We may charge a fee in order to allow You to access Beta Versions, but the Beta Versions will still remain subject to this section 10. All information regarding the characteristics, features or performance of any No-Charge Products (including Beta Versions) constitutes Our Confidential Information. To the maximum extent permitted by applicable law, We disclaim notwithstanding any other provisions of this Agreement all obligations or liabilities with respect to No-Charge Products, including any Support, warranty and indemnity obligations.

 

11. IP Rights in the Products and Feedback

11.1. IP-RIGHTS. Products, Services and Deliverables are made available on a limited access basis only, and no ownership right is conveyed to You, irrespective of the use of terms such as “purchase” or “sale”. We and Our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Products, Services and Deliverables.

11.2. FEEDBACK. From time to time, You may choose to submit Feedback to Us and herewith transfer any right, title and interest in such Feedback to Us. We may in connection with any of Our products and services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered Your Confidential Information, and nothing in this Agreement limits Our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise. Do not provide Us with Feedback unless You agree with this section 11.2.

 

12. Confidentiality

12.1. CONFIDENTIAL INFORMATION. Except as otherwise set forth in this Agreement, each Party agrees that all code, inventions, know-how and business, Materials, technical and financial information disclosed to the other Party (the “Receiving Party”) by the disclosing party, including but not limited to an Affiliate of such disclosing party (the "Disclosing Party") constitute the confidential property of the Disclosing Party (the “Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Products and other technology and any performance information relating to the Products shall be deemed Our Confidential Information without any marking or further designation.

12.2. USE OF CONFIDENTIAL INFORMATION. Except as expressly authorized herein, the Receiving Party will (i) hold in confidence and not disclose any Confidential Information to third parties unless otherwise provided in this Agreement and (ii) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under this Agreement. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this section 12 and that the Receiving Party remains responsible for compliance by them with the terms of this section 12.

12.3. EXCEPTIONS. The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).

12.4. TERM. The confidentiality obligations under this section 12 shall be valid for five years after the expiration or termination of this Agreement.

 

13. Term and Termination

13.1. TERM OF THIS AGREEMENT. This Agreement shall take effect at the Effective Date and shall, unless earlier terminated as set forth below, remain in effect until the last Purchase Order has been terminated or expired.

13.2. TERM OF THE ORDERS. Each Purchase Order shall take effect at the Starting Date of such Purchase Order and shall, unless terminated as set forth below or provided otherwise in the Purchase Order, remain in effect for the applicable Subscription Terms.

13.3. TERMINATION OF THIS AGREEMENT. Each Party may notwithstanding the foregoing provisions terminate this Agreement (including but not limited to any Purchase Order) at any time with immediate effect upon occurrence of the following events concerning the other Party: (i) if bankruptcy or similar events occur, including but not limited to the case of the appointment of a receiver, custodian, trustee, conservator, administrator or liquidator or any other officer with similar powers for a Party; or (ii) in case of ceasing of business, winding up or liquidation of a Party saves for the purposes of corporate reconstruction.

13.4. TERMINATION OF PURCHASE ORDERS. Each Party may notwithstanding the foregoing provisions terminate the concerned Purchase Order at any time with immediate effect upon occurrence of the following events: (i) in case the other Party is in material default regarding its obligations under the concerned Purchase Order and has not cured such material default within thirty (30) days after receipt of a written notice of the other Party; (ii) or if a termination is explicitly allowed according to this Agreement. A Purchase Order shall also be terminated if all relevant Subscription Terms of such Purchase Order have been expired or terminated.

13.5. EFFECTS OF TERMINATION. Upon any expiration or termination of this Agreement, (i) the Authorized Users do not have access to the concerned Products anymore and You and Your Authorized Users must cease using all concerned Products, and (ii) each of the Parties shall delete all Confidential Information or other materials of the Disclosing Party in the Receiving Party’s possession. The Receiving Parties will certify such deletion upon the Disclosing Party’s request. You will not have access to Your Data (and We may delete all of Your Data unless legally prohibited) after expiration or termination of this Agreement or the applicable Purchase Order, so You should make sure to export Your Data using the functionality of the Products during the applicable Subscription Term.

13.6. SURVIVAL. Termination or expiration of this Agreement shall not relieve either Party of its respective obligations to the other hereunder that arose prior to the effective date of termination. Notwithstanding anything herein to the contrary, all sections of this Agreement that, by their nature, should survive termination or expiration of this Agreement will survive, including without limitation, accrued rights to payment, ownership, indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.

 

14. Indemnification

14.1. OUR INDEMNIFICATION OBLIGATION. Subject to section14.3 below, We will defend and indemnify You within the liability limitations as set out in this Agreement from any and all claims, demands, suits or proceedings (“Claims”) brought against You by a third party alleging that the Products, as provided by Us to You under this Agreement, infringes any patent, copyright, or trademark or misappropriates any trade secret of any third party (each, an “Infringement Claim”). We will indemnify You within the liability limitations as set out in this Agreement for all damages, costs, reasonable attorneys’ fees finally awarded by a curt of competent jurisdiction or paid to a third party in accordance with a settlement agreement signed by Us, in connection with an Infringement Claim. In the event of any such Infringement Claim, We may, at Our option: (i) obtain the right to permit You to continue using the concerned Products, (ii) modify or replace the relevant portion(s) of the concerned Products with a non-infringing alternative having substantially equivalent performance within a reasonable period of time, or (iii) terminate this Agreement or the applicable Purchase Order as to the infringing Product and provide you with a pro rata refund of any prepaid, unused Fees for such infringing Product. Notwithstanding the foregoing, We will have no liability for any Infringement Claim of any kind to the extent that it results from: (i) modifications to the Product made by a party other than Us, (2) the combination of the Products with other products, processes or technologies (where the infringement would have been avoided but for such combination), or (iii) Your use of the Products other than in accordance with the Documentation or this Agreement. The indemnification obligations set forth in this section 14.1 are Our sole and exclusive obligations, and Your sole and exclusive remedies, with respect to infringement or misappropriation of third-party intellectual property rights of any kind.

14.2. YOUR INDEMNIFICATION OBLIGATION. Subject to section 14.3 below, You will defend and indemnify Us within the liability limitations as set out in this Agreement from any and all Claims brought against Us by a third party alleging a violation of a third party’s rights arising from Your provision or use of Your Data or Material. You will indemnify Us within the liability limitations as set out in this Agreement for all damages, costs, reasonable attorneys’ fees finally awarded by a court of competent jurisdiction or paid to a third party in accordance with a settlement agreement signed by You, in connection with such Claims.

14.3. INDEMNITY REQUIREMENTS. The Party seeking indemnity under this section 14 (the "Indemnitee") must give the other party (the "Indemnitor") the following: (i) prompt written notice of any Claim for which the Indemnitee intends to seek indemnity, (ii) all cooperation and assistance reasonably requested by the Indemnitor in the defense of the Claim, at the Indemnitor's sole expense, and (iii) sole control over the defense and settlement of the Claim, provided that the Indemnitee may participate in the defense of the Claim at its sole expense.

 

15. Warranties and Disclaimer

15.1. MUTUAL WARRANTIES. Each Party represents and warrants that it has the legal power and authority to enter into this Agreement.

15.2. OUR WARRANTIES. We warrant, for Your benefit only, that We will make commercially reasonable efforts to: (i) provide the Products substantially in accordance with the description of this Agreement and the Documentation, (ii) prevent introduction of viruses, trojan horses or similar harmful materials into the Products (but We are not responsible for harmful materials submitted by You or Authorized Users), and (iii) provide the Additional Services, if any, with due care, skill and ability and in accordance with applicable laws and regulations.

15.3. WARRANTY REMEDIES. In the event that We breach the foregoing warranty and You provide Us with written notice of such breach, Your sole remedy and Our sole obligation shall be one of the following options, such option to be selected by Us in Our sole discretion: (i) to the extent practicable, We may fix the Products or Services and correct any defect or error, provided that such defect or error is correctable; or (ii) We may terminate the applicable Purchase Order and provide You with a pro rata refund of any prepaid, unused Fees for the concerned Product.

15.4. LIMITATIONS. Your rights according to the foregoing provision will be invalid: (i) unless You make a claim within thirty (30) days of the date on which You first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment or (iii) a No-Charge Products is concerned. The foregoing states Your sole and exclusive remedies, and Our entire liability, for breach of the warranties provided under this Agreement. Any other remedies of You under this section 15 are explicitly excluded.

15.5. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 15, ALL PRODUCTS AND ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THIS AGREEMENT, WE DO NOT WARRANT THAT YOUR USE OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT THE USE OF THE PRODUCTS NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL.

 

16. Limitation of Liability

16.1. CONSEQUENTIAL DAMAGES WAIVER. NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

16.2. LIABILITY CAP. EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL IN NO EVENT EXCEED 20% OF THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.

16.3. NATURE OF CLAIMS. The Parties agree that the waivers and limitations specified in this section 16 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

 

17. Marketing Rights

17.1. PRESS RELEASES. You grant Us Your consent to publish press releases concerning the entry into this Agreement, provided that You will be given the opportunity to approve the content of such press releases.

17.2. USE OF LOGO. Either Party may use the other Party's name and logo for its websites and inclusion in its customer or supplier lists and in its promotional, marketing and investment materials, without the prior consent of the other Party.

17.3. CASE STUDY. You agree to support Us in producing a case study. You further agree to be available for a reasonable number of reference calls and potential customer visits and agree to a minimum of four (4) visits of potential customers per calendar year.

 

18. Export Restrictions

The Products may be subject to the export control laws of various countries, including without limitation the laws of Switzerland and the United States and may be subject to import restrictions by certain foreign governments. You agree to comply with all applicable export and import laws and regulations in access to, use of, distribution, and download of the Products (or any part thereof). You agree that You will not submit Products to any government agency for licensing consideration or other regulatory approval without the prior written consent of xorlab, and will not export the Products to countries, persons or entities prohibited by such laws. You will not engage in any activity that would cause xorlab to be in violation of any such export control laws and regulations.

 

19. Changes to this Agreement and the Product

19.1. CHANGES TO THE AGREEMENT: Any change to this Agreement and any part thereof shall be in writing, including emails and other electronic messages, unless explicitly otherwise provided in this Agreement.

19.2. CHANGES TO THE PRODUCTS OR ADDITIONAL SERVICES: We may, without notice to You, update or otherwise modify the Products, the Additional Services or other Services in Our sole discretion at any time, including without limitation providing updates or modifying features or functionality, or removing features or functionality (collectively, “Product Changes”), always provided that the scope and the functionality of the Products, the Additional Services and other Services to be provided to You shall not be substantially decreased and no additional fees shall occur. This Agreement also applies to all such Product Changes. We are entitled to discontinue any Products, any Additional Services or other Services, or any portion or feature of any Products for any reason at any time without liability to You, provided that We will use reasonable efforts to notify You reasonably in advance of any such discontinuation, particularly concerning the potential end-of-life date of a Product, and You are in such cases entitled to terminate the applicable Purchase Order with immediate effect in cases where the core functionality of the Product or Service is diminished substantially.

19.3. NO-CHARGE-PRODUCTS. Notwithstanding the foregoing provisions, You must accept the modifications to continue using the No-Charge Products. If You object to the modifications, Your exclusive remedy is to cease using the No-Charge Products.

19.4. CHANGES TO FEES. We are entitled to change the fees to be paid by You at any time in our free discretion, provided that (i) agreed fees for one Subscription Period cannot be changed and (ii) and You must be notified of any change of fees at least 30 days prior to an increase of the fees.

 

20. Miscellaneous

20.1. NOTICES. Any notice under this Agreement must be given in writing, including emails and other electronic messages. You may either provide notice to Us by post to xorlab AG, Binzmühlestrasse 170d, 8050 Zurich, Switzerland or by email to support@xorlab.ch. Your notices to us will be deemed given upon receipt or – in case of emails – upon reply or confirmation by email. Termination notices regarding this Agreement must notwithstanding the foregoing sentence be provided by letter, but cancellations/non-renewals of subscriptions can be sent via email.

20.2. FORCE MAJEURE. Neither Party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such Party, such as a strike, blockade, war, pandemic, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

20.3. ASSIGNMENT. No Party shall assign its rights and obligations under this Agreement without the other Party's prior written consent.

20.4. SEVERABILITY; MODIFICATIONS; WAIVER. If any provision of this Agreement is found partly or wholly illegal or unenforceable, such provision shall be enforced to the maximum extent permissible, and remaining provisions of this Agreement shall remain in full force and effect. Except as set forth in section 19 above, any amendments or other changes to this Agreement must be executed in writing, including emails and other electronic messages, by an authorized representative of each Party. A waiver of any breach or default under this Agreement shall not constitute a waiver of any other subsequent breach or default.

20.5. ENTIRE AGREEMENT. This Agreement, including Annexes and Purchase Orders, constitute the entire agreement between the Parties as to the subject matter hereof, and supersede all prior oral and written correspondence, memoranda, letters of intent, or agreements between the Parties, unless otherwise specifically provided in this Agreement.

20.6. INDEPENDENT CONTRACTORS. The Parties are independent contractors. This Agreement will not be construed as constituting either Party as a partner of the other or to create any other form of legal association that would give either Party the express or implied right, power or authority to create any duty or obligation of the other Party.

 

21. Governing Law and Dispute Resolution

21.1. INFORMAL RESOLUTION. In the event of any controversy or claim arising out of or relating to this Agreement, the Parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both Parties. If the Parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement pursuant to section 21.2 below. All negotiations pursuant to this section 21.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.

21.2. GOVERNING LAW; JURISDICTION. This Agreement will be governed by and construed in accordance with the laws of Switzerland. The governing laws are exclusive of any provisions of the United Nations Convention on Contracts for Sale of Goods, including any applicable amendments, and without regard to principles of conflicts of law. The courts of Zurich, Switzerland, shall have exclusive jurisdiction to settle any dispute which may arise out of or in connection with this Agreement.

21.3. INJUNCTIVE RELIEF; ENFORCEMENT: Notwithstanding the provisions of sections 21.1 and 21.2 above, nothing in this Agreement will prevent the Parties from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

 

 

Annex 1

Unless otherwise defined in this Agreement, capitalized terms will have the meaning given below and such capitalized terms may be used in the singular or in the plural, as the context requires.

“Additional Services” means paid support or other professional services related to the Product We provide to You under this Agreement, and as identified in the applicable Purchase Order. For the avoidance of doubt, Additional Services do not include the standard level of support included in Your subscription.

“Administrators” mean the personnel designated by You who administers the Products to Authorized Users on Your behalf.

"Affiliate" means legal entities controlling, or under the control of, or under common control with, a third party or parties. The term "control" means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise, but, in any event, the holding of more than 50% of the votes of the ordinary share capital or the power to nominate a majority of the members of the board of directors of an entity shall be deemed to control such legal entity.

“Authorized User” means an employee, agent, contractor, or other third party authorized by You to access, use, download, deploy, or install the concerned Products.

“Authorized User Account” means an account established by You or an Authorized User to enable the Authorized User to use or access a Product.

“Beta-Version” means the beta version as further described in section 10.2 above.

“Claims” mean the claims as further described in section 14.1 above.

“Collected Data” means certain information which xorlab may collect, retain, process, disclose and use in connection with Your use of the Products, or Your devices or systems with which the Products operate, and may include, but is not limited to, data collected at the points of integration.

“Confidential Information” has the meaning set out in section 12.1 above.

“Customer” has the meaning set out on the first page of this Agreement.

“Deliverables” means any materials, deliverables, modifications, derivative works or developments that We provide in connection with any Additional Services as further described in section 4.2 above.

“Disclosing Party” has the meaning set out in section 12.1 above.

“Documentation” means Our standard published documentation for the Products, currently located at docs.xorlab.com, release notes and technical manuals. Documentation may also be delivered in a text file or in printed form.

“Effective Date” is defined on the first page of this Agreement.

“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the Products, Support or Additional Services.

“Fees” are the fees to be paid by You under this Agreement.

“Indemnitee” has the meaning set out in section 14.3 above.

“Indemnitor” has the meaning set out in section 14.3 above.

“Materials” means materials, systems, personnel or other resources provided by You.

“No-Charge Products” has the meaning set out in section 10.1 above.

“Party” and “Parties” have the meaning set out on the first page of this Agreement.

“Products” means Our hosted or cloud-based solutions provided to You under this Agreement, including any client software We provide as part of the Products.

“Purchase Order” has the meaning set out in section 2.4 above.

“Receiving Party” has the meaning set out in section 12.1 above.

“Sensitive Personal Information” means any (i) sensitive data in the sense of Article 9(1) GDPR or any other applicable law; (ii) patient, medical or other protected health information regulated by HIPAA; (iii) credit, debit or other payment card data subject to PCI DSS; or (iv) any data that is personal data and is protected more strict than normal personal data according to applicable laws.

“Services” has the meaning set out in section 3.3 above.

“Starting Date” shall be defined in the applicable Purchase Order and indicate the starting date regarding (i) the access of You to the concerned Product and (ii) the Subscription Term.

“Subscription Term” means Your permitted subscription period for the concerned Product, as set forth in the applicable Purchase Order.

“Support” means support for the Products provided by Us under the Service Level Agreement and other parts of this Agreement.

“Third Party” has the meaning set out in section 3.4 above.

“Training” means xorlab-provided training and certification services.

“Your Data” means (i) the data and information provided by You (including any of Your Authorized Users) to Us and/or input by You, or Us on Your behalf for the purpose of using the Products or facilitating Your use of the Products or (ii) data collected and processed by or for You through Your use of the Products, but excluding Collected Data. In this context, “provide” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through the Products.

“xorlab” has the meaning set out on the first page of this Agreement.

 

 

Annex 2

[Data Processing Agreement]

 

 

Annex 3

[Service Level Agreement]