These Service Terms and Conditions are effective on November 1st, 2018.
These Service Terms and Conditions (the “Agreement”) are entered into and between Geenio Limited (limited liability company having its registered office at Dimitriou Karatasou, 15, Anastasio Building 6th Floor, Flat/Office 601, Strovolos, 2024, Nicosia, Cyprus) (the “Service Provider”) and the Customer agreeing to the terms of this Agreement. This Agreement governs access to and use of the Service Provider’s (“Service Provider” “we”, “us” or “our”) software and services specified herein, known and marketed under the name of Courselle (“Courselle Service” or “Service”).
By clicking “I Agree”, using or signing up for Courselle Services or submitting Purchase Order, you agree to this Agreement as a Customer. If you are agreeing to this Agreement for use of the Services by an organization, you are agreeing on behalf of that organization. You must have the authority to bind that organization to this Agreement, otherwise you must not sign up for the Services.
YOUR USE OF THE COURSELLE SERVICE CONSTITUTES YOUR AGREEMENT TO ALL TERMS, CONDITIONS, AND NOTICES CONTAINED ON THIS PAGE. THESE TERMS AND CONDITIONS CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND THE SERVICE PROVIDER. PLEASE READ THIS AGREEMENT IN ITS ENTIRETY BEFORE YOU CONTINUE TO USE COURSELLE SERVICE. BY USING COURSELLE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE, DISCONTINUE USING THE COURSELLE SERVICE.
The attention of the Customer is drawn in particular to the provisions of clauses 11 and 12 which limit Service Provider’s liability and exclude certain types of liability. Please note that if the Customer is signing up to a Free Use of any Service Provider’s product(s) then, notwithstanding any other provision to the contrary, the product(s) are provided on “as-is” basis and without any warranty whatsoever. During the Free Use period the product(s) are used at the Customer’s own risk.
Terms defining Confidential Information, Intellectual Property of Software, Services, Services technology, Customer Data, and Service Provider’s rights and Customer’s obligations related to them are applicable in relation to any and all licensors of the Software and Services even if it is not expressively stated in the appropriate section of this Agreement.
Service Provider reserves the right, in its sole discretion, to revise these Terms and Conditions of the Agreement from time to time in accordance to Article 14 (a).
Service Provider hereby declares and Customer hereby confirms understanding of the fact that Service Provider is either the owner or the licensee of the Software and the Services and has all the powers and authority to enter into this Agreement.
“Administrator” means the End Users specified by the Customer through the Customer’s account. Administrators may have the ability to access, disclose, restrict or remove Customer Data in or from Customer’s and End Users’ accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Customer’s and End Users’ accounts. Service Provider’s responsibilities do not extend to the internal management or administration of the Services. Customer is responsible for: (i) maintaining the confidentiality of passwords and Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrators’ use of the Services and performance complies with this Agreement.
“Customer” means contractor of Services under this Agreement and all visitors, users and others who access the Services.
“Confidential Information” means the information of the Service Provider and Customer including but not be limited to employee data of the Customer (including the Customer Data), confidential aspects of the Service, Services Technology and all other data relating to each parties business, research and development information, formulae, methods, know-how, processes, designs, performance tests, product evaluations, computer software and any other information identified as confidential or information that the receiving party knew or reasonably should have known was confidential.
“End User(s)” means the employees, representatives, consultants, contractors or agents of the Customer (and those of any Group Company) who are authorized by the Customer to use the Service and have been supplied usernames and passwords by the Customer or by Service Provider.
“Effective Date” means the earlier of the date of the Purchase Order, execution of this Agreement and the date when the Customer accesses any Service via the Service Provider’s and/ or its licensor’s or affiliate, or any other contractor’s website or application (including, for the avoidance of doubt, for the purposes of a Free Use).
“Group” means, in relation to the Customer, any holding company of the Customer, any subsidiary or affiliate of the Customer and any other subsidiary of such holding company and “Group Company” shall be construed accordingly.
“Free Use” means the use of Service by the Customer whether during a trial period orotherwise to the extent of functionalities that are not charged by the Service Provider for an indefinite or a limited period of time.
“Intellectual Property” – (a) inventions, whether or not patentable, whether or not reduced to practice, and whether or not yet made the subject of a pending patent application or applications, (b) ideas and conceptions of potentially patentable subject matter, including, without limitation, any patent disclosures, whether or not reduced to practice and whether or not yet made the subject of a pending patent application or applications, (c) national and multinational statutory invention registrations, patents, patent registrations and patent applications (including all reissues, divisions, continuations, continuations-in-part, extensions and reexaminations) and all rights therein provided by international treaties or conventions and all improvements to the inventions disclosed in each such registration, patent or application, (d) trademarks, service marks, trade dress, logos, trade names and corporate names, designs, whether or not registered, including all common law rights, and registrations and applications for registration thereof, including, but not limited to, all marks registered in the trademark offices throughout the world, and all rights therein provided by international treaties or conventions, (e) copyrights (registered or otherwise) and registrations and applications for registration thereof, and all rights therein provided by international treaties or conventions, (f) moral rights (including, without limitation, rights of paternity and integrity), and waivers of such rights by others, (g) computer software including, without limitation, source code, operating systems and specifications, data, data bases, files, documentation and other materials related thereto, data and documentation, (h) trade secrets and confidential, technical and business information (including ideas, formulas, compositions, inventions, and conceptions of inventions whether patentable or unpatentable and whether or not reduced to practice), (i) whether or not confidential, technology (including know-how and show-how), manufacturing and production processes and techniques, research and development information, user and installation manuals, algorithms, drawings, specifications, designs, plans, proposals, technical data, copyrightable works, financial, marketing and business data, pricing and cost information, business and marketing plans and customer and supplier lists and information, (j) copies and tangible embodiments of all the foregoing, in whatever form or medium, (k) all rights to obtain and rights to apply for patents, and to register trademarks, designs and copyrights, (l) all rights to sue or recover and retain damages and costs and attorney’s fees for present and past infringement of any of the foregoing, and (m) any improvements, modifications, additions, enhancements of any of the foregoing, regardless of who developed them and when they were developed, whether before or after the Effective Date of this Agreement.
“Services” means a tool for creation of interactive training courses with training process management functionalities that are provided by accessing and using the Software via the website or an application (for stationary or mobile devices) as more defined in the Purchase Order form.
“Services Technology” means all of Service Provider’s, its affiliates, licensors or contractors proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to the Customer by Service Provider in providing the Services.
“Software” means entirety of the programs and other operating information used by a computer dedicated for the provision of Services that are programmed, developed and maintained by Service Provider, its affiliates, licensors and/or contractors.
Customer and End Users of the Customer may access and use the Services in accordance with this Agreement. Service Provider agrees to provide the Service to the Customer on the terms of this Agreement for use by the number of End Users for whom the Customer has paid Service fees. The Customer may only use the Service for its own internal purposes and its End Users and not to provide any service to any third party.
a. Facilities and Data Processing. Service Provider will use, at a minimum, industry standard technical and organizational security measures to transfer, store, and process Customer Data. These measures are designed solely to protect the integrity of Customer Data and guard against the unauthorized or unlawful access to, use, and processing of Customer Data. Service Provide undertakes no obligation to verify Customer Data provided by Customer or End Users. Customer agrees that Service Provider may transfer, store, and process Customer Data in locations other than Customer’s country and / or to persons other than Service Provider, including but not limiting to outside the United States and / or European Union. “Customer Data” means Stored Data and Account Data. “Stored Data” means the files, learning, educational, training content and structured data submitted to the Services Provider by Customer or End Users. “Account Data” means the account and contact information submitted to the Services Provider by Customer or End Users.
b. Software and Services Technology. Some Services allow Customer to download or use Service Provider’s Software and other Services Technology which may update automatically. Service Provider issues a limited, nonexclusive, nontransferable, revocable license to use the Software and other Services Technology in the territory where the Client resides, solely to access and use the Services. Customer may use the Software and other Services Technology only to access and use the Services. Service Provider can withdraw this license at any time and for any reason or without any reason. If any component of the Software is offered under an open source license, Service Provider will make the license available to Customer and the provisions of that license may expressly override some of the terms of this Agreement.
c. Data Protection. The Customer shall own all rights, title, entire responsibility and interest in and to all of the Customer Data and shall have sole and entire responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data. Service Provider shall not be liable or responsible for the content, any loss, destruction, alteration or disclosure of Customer Data. If Service Provider processes any personal data comprised in the Customer Data on the Customer’s behalf when performing its obligations under the Agreement, the parties record their intention that the Customer shall be the data controller and Service Provider shall be a data processor and in any such case:
i. the Customer acknowledges and agrees that the personal data may be transferred or stored outside the country where the Service Provider, Customer and the End Users are located in order to carry out the Services and Service Provider’s other obligations under the Agreement;
ii. the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Service Provider so that Service Provider may lawfully use, process and transfer the personal data in accordance with terms of this Agreement on the Customer’s behalf;
iii. the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
iv. Service Provider shall process the personal data only in accordance with the laws or the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time;
v. 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; and
vi. Service Provider shall be authorized to transmit, disclose or otherwise transfer the Customer Data to the Service Provider’s affiliates and/ or licensees or a third party to the extent it is necessary to provide, maintain and develop Services.
d. Modifications to the Services. Service Provider may update the Services from time to time. If Service Provider changes the Services in a manner that materially reduces their functionality, Service Provider will inform Customer via the email address associated with the account.
e. Configuration of the Service. Service Provider agrees that the Customer may brand the Service for the additional fee specified in the Purchase Order, provided that the Customer shall indemnify Service Provider against any claim that its branding of the Service infringes in any respect the intellectual property of any third party.
f. Availability. Service Provider shall use commercially reasonable endeavors to make the Service available 24 hours a day, seven days a week, except for: (i) approximately of 8 hours duration of a planned maintenance carried out usually outside normal business hours, provided that Service Provider has used reasonable endeavors to give the Customer at least 4 normal business hours’ notice in advance; and (ii) unscheduled maintenance, provided that Service Provider has used reasonable endeavors to give the Customer notice in advance and finish such maintenance within 4 hours. Service Provider will publish such notices on its website.
a. Compliance. Customer is responsible for access and use of the Services by its End Users. Customer is responsible and shall make sure that End Users are given, comply with and accept terms and conditions of this Agreement. Customer and its End Users must use the Services in compliance with this Agreement. Customer will obtain from End Users any consents necessary to allow Administrators to engage in the activities described in this Agreement and to allow Service Provider to provide the Services. Customer will comply with laws and regulations applicable to Customer’s use of the Services, if any.
b. Unauthorized Use & Access. Customer will prevent unauthorized use of the Services by its End Users and terminate any unauthorized use of or access to the Services. Customer will ensure that it does not allow any person under 18 to use the Services without parents’ or custodians’ permission, express consent and agreement to all terms and conditions of this Agreement. Customer will promptly notify Service Provider of any unauthorized use of or access to the Services.
c. Restricted Uses. Customer will not (i) sell, resell, or lease the Services; (ii) use the Services for activities where use or failure of the Services could lead to physical damage, death, or personal injury; or (iii) reverse engineer the Services, nor attempt nor assist anyone else to do so, unless this restriction is prohibited by law.
d. Responsibilities. i. The Customer is responsible for all activity occurring under its and End User accounts (including for the avoidance of doubt any unlawful use and any unauthorized use by persons who are not End Users) and shall abide by all applicable law and regulations that are applicable to the Customer in using the Service, including those related to data privacy and the transmission of personal data.
ii. The Customer shall ensure that each username and password combination (“Login”) is only used by one person. The Customer may create separate Logins for as many End Users as Customer’s account allows. Each Login may only be used by one person. The Customer is responsible for maintaining the security of Logins to its account.
iii. The Customer shall not in the course of its use of the Service access, store, distribute or transmit any viruses or any material during the course of its use of the Service that:
1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2. facilitates illegal activity;
3. depicts sexually explicit images;
4. promotes unlawful violence;
5. is discriminatory based on race, gender, color, religious belief, sexual orientation, disability, or any other illegal activity; or
6. causes damage or injury to any person or property;
iv. Service Provider reserves the right (but will not be obligated to do so), without liability to the Customer, to remove Customer’s material and / or disable the Customer’s access to any material that breaches the provisions of this clause.
v. Customer shall make sure it always gives to Service Provider correct contact and billing details.
e. The Customer shall not:
i. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: 1. and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means; or
2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
ii. access all or any part of the Service in order to build a product or service which competes with the Service; or
iii. use the Service to provide services to third parties; or
iv. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service available to any third party except the End Users, or
v. attempt to obtain, or assist third parties in obtaining, access to the Service, other than as provided under this clause.
f. Third Party Requests.
i. “Third Party Request” means a request from a third party for records relating to Customer’s or End User’s use of the Services including information in or from an End User’s or Customer’s account and, if necessary, Customer Data. Third Party Requests may include valid search warrants, court orders, or subpoenas, or any other request. Third Party Request may be granted pursuant to any applicable laws, rules, regulatory authority, court order, a valid subpoena, other legal process and to the extent that legal advisers for the receiving party determines in their reasonable discretion that the disclosure of such information is reasonably and lawfully required, provided in each case that, where it is not prohibited from doing so, the receiving party promptly notifies the disclosing party in writing of such disclosure and provides the disclosing party an opportunity to seek an appropriate protective order prior to disclosing such information.
ii. Customer is responsible for responding to Third Party Requests via its own access to information. Customer will seek to obtain information required to respond to Third Party Requests and will contact Service Provider only if it cannot obtain such information despite diligent efforts.
iii. Service Provider will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third Party Request, to: (A) promptly notify Customer of Service Provider’s receipt of a Third Party Request; (B) comply with Customer’s commercially reasonable requests regarding its efforts to oppose a Third Party Request; and (C) provide Customer with information or tools required for Customer to respond to the Third Party Request (if Customer is otherwise unable to obtain the information). If Customer fails to promptly respond to any Third Party Request, then Service Provider may, but will not be obligated to do so.
a. During the term of the Agreement, each party may have access to confidential information of the other party. Confidential Information shall be used solely for each party’s performance under the Agreement and the exercise of its rights under the Agreement, therefore Service Provider shall be authorized to transmit, disclose or otherwise transfer the Customer Data that may include Confidential Information to the Service Provider’s affiliates and/ or licensees or a third party to the extent it is necessary to provide, maintain and develop Services. Except as specified herein, Confidential Information shall not be disclosed to any third party. Each party shall take reasonable precautions, at least as great as the precautions it takes to protect its own confidential information, to maintain the Confidential Information of the other party in strict confidence.
b. Confidential Information shall not include any information that the receiving party can establish: (i) is or subsequently becomes publicly available through no act or omission of the receiving party; (ii) was in the receiving party’s lawful possession prior to disclosure of such information; (iii) is subsequently disclosed to receiving party by a third party who is not in breach of an obligation of confidentiality; (iv) suggestions, ideas, enhancement requests, feedback, recommendations provided by the Customer (or any third party acting on behalf of or providing advice to the Customer or otherwise acting in the performance of an agreement with the Customer) relating to the Service; or (v) is independently developed by the receiving party without the use or benefit of the Confidential Information. Confidential Information may be disclosed pursuant to any applicable laws, rules, regulatory authority, court order, a valid subpoena, other legal process and to the extent that legal advisers for the receiving party determines in their reasonable discretion that the disclosure of such Confidential Information is reasonably and lawfully required, provided in each case that, where it is not prohibited from doing so, the receiving party promptly notifies the disclosing party in writing of such disclosure and provides the disclosing party an opportunity to seek an appropriate protective order prior to disclosing such Confidential Information.
c. The disclosing party may be irreparably damaged if the obligations of confidence under this clause are breached and such party may not have an adequate remedy in damages in the event of a breach by the other party of such obligations. The parties agree, therefore, that such party may be entitled, in addition to other available remedies, to an injunction restraining any actual, threatened or further breaches of the other party’s obligations of confidence or any other appropriate equitable order or decree.
If Customer uses any third-party service (e.g., cloud-based services, a service that uses a Service Provider’s application programming interface) with the Services, (a) Service Provider will not be responsible for any act or omission of the third party, including the third party’s access to or use of Customer Data and (b) Service Provider does not warrant or support any service provided by the third party.
a. Of Customer and End User Accounts by Service Provider. If Customer or End User (i) violates this Agreement or (ii) uses the Services in a manner that Service Provider reasonably believes will cause it liability, then Service Provider may suspend or terminate the applicable Customer or End User account or request that Customer suspend or terminate the applicable End User account.
b. Security Emergencies. Notwithstanding anything in this Agreement, if there is a Security Emergency then Service Provider may automatically suspend use of the Services. Service Provider will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. “Security Emergency” means: (i) use of the Services that do or could disrupt the Services, other customers’ use of the Services, or the infrastructure used to provide the Services and (ii) unauthorized third-party access to the Services.
a. Reservation of rights. Except as expressly set forth herein, this Agreement does not grant (i) Service Provider any Intellectual Property rights in Customer Data or (ii) Customer any Intellectual Property rights in the Software, Services Technology and Services or Service Provider’s and it’s licensors trademarks, patents and brand features.
b. Ownership. Service Provider (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property rights, in and to the Services Technology, the Software and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations provided by the Customer or any third party acting on behalf of or providing advice to the Customer or otherwise acting in the performance of an agreement with the Customer (in this clause “Third Parties”) relating to the Service. The Customer assigns to Service Provider and its licensors, and shall if necessary procure that all Third Parties shall assign to Service Provider, by way of present and future assignment, all Intellectual Property rights in all such suggestions, ideas, enhancement requests, feedback and recommendations. The Agreement is not a sale and does not convey to the Customer any rights of ownership in or related to the Service, Software, Services Technology or the Intellectual Property rights owned by Service Provider or (where applicable) its licensors. The Service Provider’s and its licensors names, the logos, and the product names associated with the Service and Software are trademarks of Service Provider and its licensors or third parties, and no right or license is granted for the Customer or End Users to use them.
c. Limited Permission. Customer grants Service Provider only the limited rights that are reasonably necessary for Service Provider to offer the Services (e.g., hosting Stored Data). This permission also extends to trusted third parties Service Provider works with to offer the Services (e.g., payment provider used to process payment of fees, cloud-based services, etc.).
d. Suggestions. Service Provider may, at its discretion and for any purpose, use, modify, and incorporate into its products and services, license and sublicense, any feedback, comments, or suggestions Customer or End Users send Service Provider or post in Service Provider’s forums without any obligation to Customer. This right is granted by Customer to Service Provider irrevocably, worldwide and perpetually.
e. Customer List. Service Provider and its licensors may include Customer’s name in a list of Service’s customers on the Service Provider’s, its licensors’ and affiliates’ website or in promotional materials.
a. Fees. Customer will pay, and authorizes Service Provider to charge Customer’s credit card automatically, for all applicable fees under this Agreement or to charge using other selected payment method, for all applicable fees under this Agreement. Fees are non-refundable except as required by law. Customer is responsible for providing complete and accurate billing and contact information to Service Provider. Service Provider may suspend or terminate the Services if fees are past due. All prices and fees are at the rate and in the currency as specified on the website of the Service Provider and / or in the Purchase Order. All amounts payable under the Agreement are exclusive of value-added tax or any other taxes. Withholding or any other similar taxes that might be applicable are not included into applicable fees and shall be added separately. IF CUSTOMER’S ACCOUNT IS SET TO AUTO RENEWAL OR IS IN A TRIAL (FREE USE) PERIOD, SERVICE PROVIDER MAY AUTOMATICALLY CHARGE CUSTOMER’S CREDIT CARD (OR OTHER SELECTED PAYMENT METHOD) AT THE END OF THE TRIAL (FREE USE) PERIOD OR FOR THE RENEWAL, UNLESS CUSTOMER NOTIFIES SERVICE PROVIDER THAT CUSTOMER WANTS TO CANCEL OR DISABLE AUTO RENEWAL.
b. Payment. Service Provider shall invoice the Customer in advance for the Service. The Customer shall pay Service Provider the fees for the Service within 10 (ten) days of receipt of Service Provider’s invoice. Fees for the Service subsequent periods are due and payable at the beginning of each period. Subject to the provisions of clause 8(d) below, all fees for the Service paid in advance are non-refundable. The fees for any provided Services shall be specified in the Purchase Order and shall be payable in accordance with the Purchase Order, together with reasonable travel and other out of pocket expenses. On termination of the Agreement for any reason, all fees and other sums that are payable under the Agreement shall become due for payment immediately.
c. Non-Payment. Without prejudice to any other available remedy, Service Provider reserves the right to suspend or terminate the Agreement and/or the Customer’s access to the Service if the Customer fails to pay any undisputed invoices in accordance with clause 8(b) above. Additionally, Service Provider reserves a right to calculate and apply default interests for the late payments at the rate of 0.02 % per each delayed day.
d. No Refund. No fees or other charges will be refunded or waived in respect of any period of suspension. Where interest accrues on any sum due in accordance with this clause, any payment later received will be applied first in payment of the interest due, and only secondly in reduction of the indebtedness.
e. Fee Rates. Service Provider may revise Service rates by providing Customer at least 30 (thirty) day notice prior to the next charge.
f. Taxes. Customer is responsible for all taxes, governmental fees and other charges. Service Provider will charge tax when required to do so. If Customer is required by law to withhold any taxes, Customer must provide Service Provider with an official tax receipt or other appropriate documentation.
a. Term. This Agreement will remain in effect until Customer’s subscription to the Services expires or until the Agreement is terminated whichever occurs earlier.
b. Termination by notice. This Agreement can be terminated by either party giving 30 (thirty) days’ written notice to the other party to expire on. Either party shall be entitled to terminate the Agreement immediately by written notice to the other if the other party is involved in any legal proceedings concerning its solvency, or ceases its business, or is adjudicated bankrupt or enters into liquidation, whether compulsory or voluntary (other than for the purposes of an amalgamation or reconstruction), or makes an arrangement with its creditors or petitions for an administration order or has a receiver or manager appointed over all or any part of its assets or generally becomes unable to pay its debts or any analogous event occurs in any relevant jurisdiction.
c. Termination for Breach. Either Service Provider or Customer may immediately terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 10 (ten) days after receipt of written notice or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 (ninety) days.
d. Effects of Termination. If this Agreement terminates for any reason: (i) all fees and other sums that are payable under this Agreement will become due for payment immediately; (ii) the rights granted by Service Provider to Customer will cease immediately (except as set forth in this section); (iii) Service Provider may provide Customer access to its account at then-current fees so that Customer may export its Customer Data; and (iv) after 60 (sixty) days, Service Provider may delete any Customer Data relating to Customer’s account. The following sections will survive expiration or termination of this Agreement: 3(f) (Third Party Requests), 4 (Confidentiality), 7 (Intellectual Property rights), 8 (Fees & Payment), 9(d) (Effects of Termination), 10 (Indemnification), 11 (Disclaimers), 12 (Limitation of Liability), 13 (Disputes), and 14 (Miscellaneous).
a. By Customer and its End Users. Customer and its End Users will indemnify, defend, and hold harmless Service Provider, its licensors, affiliates and contractors from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Service Provider and its affiliates regarding: (i) Customer Data; (ii) Customer’s use of the Services in violation of this Agreement; or (iii) End Users’ use of the Services in violation of this Agreement.
b. By Service Provider. Service Provider will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Customer to the extent based on an allegation that Services Technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, patent, or trademark right of the third party. In no event will Service Provider have any obligations or liability under this section arising from: (i) use of any Services in a modified form or in combination with materials not directly furnished by Service Provider and (ii) any content, information, or data provided by Customer, End Users, or other third parties.
c. Possible Infringement. If Service Provider believes the Services infringe or may be alleged to infringe a third party’s Intellectual Property rights, then Service Provider may at its sole and absolute discretion: (i) obtain the right for Customer, at Service Provider’s expense, to continue using the Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If Service Provider does not believe the options described in this section are commercially reasonable then Service Provider may suspend or terminate Customer’s use of the affected Services (with a pro-rata refund of prepaid fees for the Services).
d. General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE SERVICE PROVIDER’S, ITS LICENSOR’S, CUSTOMER’S AND END USER’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER CUSTOMER NOR SERVICE PROVIDER AND ITS LICENSORS, AFFILIATES AND CONTRACTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NON-INFRINGEMENT. CUSTOMER IS RESPONSIBLE FOR MAINTAINING THE FUNCTIONALITY OF SERVICES AND BACKING UP ANY STORED DATA.
a. Service provider:
i. does not warrant that the Customer’s use of the Service will be uninterrupted or error-free; nor that the Service and/or the information obtained by the Customer through the Service will meet the Customer’s requirements; and
ii. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Service may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
b. The Customer warrants that it intends to use the Service for its own internal purposes (and not to provide services to any third party) and that it has not falsely identified itself nor provided any false information to gain access to the Service and that its billing information is correct.
c. Except as set out expressly in this Agreement, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from the Agreement.
a. Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR SERVICE PROVIDER’S, CUSTOMER’S OR END USERS’ INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER OR END USER NOR SERVICE PROVIDER AND ITS LICENSORS, AFFILIATES AND CONTRACTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
b. Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, SERVICE PROVIDER’S, ITS AFFILIATE’S, CONTRACTOR’S AND LICENSOR’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO SERVICE PROVIDER HEREUNDER DURING THE SHORTER OF TWO EITHER THE THREE MONTHS OR THE PERIOD THE SERVICES WERE PROVIDED PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
a. Informal Resolution. Service Provider wants to address your concerns without resorting to a formal legal case. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures in Clause 14(e). If a dispute is not resolved within 30 (thirty) days of notice, Customer or Service Provider may bring a formal proceeding.
b. Dispute Resolution. If any dispute arises out of the Agreement the parties will attempt in good faith to negotiate a settlement. If the matter is not resolved by negotiation, the parties will refer it to mediation in accordance with the Centre for Effective Dispute Resolution (“CEDR”) Model Mediation Procedure. (See www.cedr.co.uk). Unless the parties agree on the choice of mediator within 7 days of one party nominating a proposed mediator in writing to the other, the mediator shall be appointed by CEDR at the request of either party. If the parties fail to agree terms of settlement within 42 (forty two) days of the start of the first meeting held under such procedure, the dispute may be referred to litigation by either party. Nothing in this clause shall prevent or delay either party from seeking injunctive relief in any court in respect of any infringement of intellectual property or from issuing proceedings to recover any undisputed debt or from joining the other party to any proceedings issued against the first party by a third party.
c. NO CLASS ACTIONS. Customer may only resolve disputes with Service Provider on an individual basis and will not bring a claim in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
a. Terms Modification. Service Provider may revise this Agreement from time to time and the most current version will always be posted on the Service Provider’s website. If a revision, in Service Provider’s sole discretion, is material, Service Provider will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to Service Provider’s website, and Customer is responsible for checking such postings and revisions regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within 30 days of posting notice of the change on Service Provider’s website.
b. Entire Agreement. This Agreement, including Customer’s invoice and Purchase Order, constitutes the entire agreement between Customer and Service Provider with respect to the subject matter of this Agreement and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the invoice, the Purchase order, the Agreement.
c. Governing Law. THE AGREEMENT WILL BE GOVERNED BY THE LAWS OF ENGLAND AND THE PARTIES SUBMIT IRREVOCABLY TO THE NON-EXCLUSIVE JURISDICTION OF THE ENGLISH COURTS.
d. Severability. Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
e. Notice. Notices must be sent via first class, airmail, or overnight courier and are deemed given 3 (three) business days after it is sent. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Notices to Service Provider must be sent to Geenio Limited., Dimitriou Karatasou, 15, Anastasio Building 6th Floor, Flat/Office 601, Strovolos, 2024, Nicosia, Cyprus, or when applicable to email email@example.com.
f. Waiver. A waiver of any default is not a waiver of any subsequent default.
g. Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Service Provider. Service Provider may not assign this Agreement without providing 30 (thirty) day notice to Customer, except Service Provider may assign this Agreement or any rights or obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
h. No Agency. Service Provider and Customer are not legal partners or agents, but are independent contractors and nothing in the Agreement shall be deemed to make either party an agent, employee, partner or joint venture of the other party. Neither party shall have the authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
i. Employees. During the term of the Agreement and for 12 (twelve) months thereafter, both parties agree not without the other party’s prior written consent to solicit or to offer employment to any employees of the other party with whom they have had dealings in relation to the Agreement. If a party breaches this restriction, it agrees to pay to the other party on demand as liquidated damages a sum equal to 30% of that person’s starting annual gross salary or other contractual payment with the party in breach and agrees that this amount shall be recoverable as a debt.
j. Force Majeure. Except for payment obligations, neither Service Provider nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control. The Services may be subject to limitations and/or delays, inherent in the use of the internet and electronic communications. Except to the extent that Service Provider is in breach of obligations under the Agreement, Service Provider is not responsible to the Customer or any End User for any delays, delivery failures, resulting from such problems. Neither party shall be liable for any delay or default in performing any of its obligations (not being an obligation to pay money to the other party) if the delay or default results from events or circumstances outside its reasonable control, including interruption or failure of utility services including but not limited to electricity or telephone services, failure of any transportation service, fuel shortage, any industrial dispute, fire, flood, earthquake, severe weather conditions, war or other hostilities, acts of terrorism, actions of governments or governmental agencies, riots or other civil commotions. The party affected shall use all reasonable endeavours to remove or overcome the cause of such force majeure as soon as practicable. Such delay or default shall not constitute a breach of the Agreement and the time for performance shall be extended by a period equivalent to that during which performance is so prevented.
k. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this clause, a Customer’s End Users are not third-party beneficiaries to Customer’s rights under this Agreement.
If you have any questions or complaints regarding this Agreement you can contact us at firstname.lastname@example.org or by mail at Geenio Limited, Dimitriou Karatasou, 15, Anastasio Building 6th Floor, Flat/Office 601, Strovolos, 2024, Nicosia, Cyprus.