Terms of Service

Definitions

1.1 All definitions used in the Agreement are specified in Annex A.

Agreement and Scope

2.1 These Terms, together with any accepted Order between You and Us, comprise the Agreement between You and Us. The Agreement governs Your Use of the Software and Support Services.

2.2 We shall make the Software available to You as a Subscription in accordance with the applicable Order. The Subscription Fees cover the use of the Software (in accordance with the license granted herein) and the provision of Support Services, as further described in the Agreement. These Terms do not apply in respect of any additional services such as any installation, integration, parametrization and/or adaption services related to the Software.

2.3 By signing an Order offered by Us, which references these Terms or by indicating Your acceptance through an “I accept” checkbox or similar electronic acceptance method, You accept the Order and agree to be bound by the Agreement.

Delivery

3.1 We shall make available to You the Software for download by the date specified in the Order, and this shall be the date the Software is deemed delivered to You. Alternatively, We may at Our discretion provide You access to the information using a different format, provided any such different format will not affect Your use of the Software.

3.2 In respect of new Releases, delivery shall be deemed completed on the date We make the applicable new Release available to You by download.

3.3 In the event of changes to the rights granted to You pursuant to an applicable Order (e.g. extension of the Subscription Term, additional metrics, etc.), We shall provide You with a new certificate and will deactivate Your previously issued access key.

Support Services

4.1 We provide Support Services as part of the Subscription and these Support Services are described in the Support Services Description which forms part of the Agreement.

4.2 We provide Support Services only for the most current Major Release of the Software. To ensure full use of the Support Services, You are advised to update and maintain Your Subscription to the latest Major Release.

Subscription Rights and Scope

5.1 We are and remain exclusive owners of all rights (including without limitation the Proprietary Rights) in and to the Software and Documentation. You are granted a non-exclusive, non-transferable, revocable right to use the Software for the Subscription Term for Your own and Your Affiliates’ internal purposes (which specifically excludes any analysis of third-party data and any use of the Software for other companies/organizations is prohibited). You are responsible for all acts and omissions in breach of the Agreement by any such Users and Affiliates and accordingly, You will ensure that all Users and all Affiliates are made aware of the terms of the Agreement applicable to Your use of Software.

5.2 Your Subscription shall be limited in accordance with the metrics in the applicable Order. Definitions of the metrics are contained in the Metrics Definition, which is incorporated by reference.

5.3 Any additional copies of the Software and other materials We make available to You are only for Your internal backup or archiving purposes. You will treat the Software and provided materials as Confidential Information and shall undertake all required activities to ensure that no third party gains any access to the Software or provided materials.

5.4 You will not (i) copy, translate, or otherwise modify or produce derivative works of all or parts of the Software, it being understood that You will be entitled to copy the Documentation and materials accompanying the Software as is reasonably required for Your internal purposes; (ii) use the Software in breach of applicable laws or for any illegal activities, including without limitation to transfer data and information which is illegal or in breach of third-party Proprietary Rights; (iii) disassemble, reverse engineer, decompile, place at risk or circumvent the functionalities, performance, and/or the security of the Software; (iv) use all or any part of the Software in order to build a competitive and/or similar product or service; or (v) determine whether the Software is within the scope of any patent.

5.5 Your subscription will be cancelled upon any damages incurred due to the unauthorized use of the Software, source code, or other materials provided by Us, including without limitation, any continued use of the Software outside the Subscription Term and any provision of the Software, source code, or other materials to unauthorized third parties.

Fees and Payment

6.1 Where your Order is directly with ADLSolution, i. ii. (a) We will invoice the Subscription Fees annually in advance; and (b) unless otherwise agreed upon in the Order, all payments are due in full without deduction or set-off within 30 (thirty) days of the date of Our invoice. The Subscription Fees are non-refundable and do not include Taxes and You are responsible for all Taxes. If We are required to pay Taxes based on the Software provided under these Terms, then such Taxes shall be billed to and paid by You. If a deduction or withholding is required by law, You shall pay such additional amount and will ensure that the net amount received by Us equals the full amount which We would have received had the deduction or withholding not been required. We shall be entitled to adjust the Subscription Fees with effect from Your next Renewal Term. Where We increase the Subscription Fees Unless otherwise agreed between You and Us.

Customer Data; Data Protection

7.1 You own all right, title and interest in and to Customer Data and shall have sole responsibility and liability for (i) the legality, appropriateness, and integrity of Customer Data; (ii) the completeness, reliability, accuracy and quality of Customer Data; (iii) obtaining and maintaining all necessary licenses and consents required to use Customer Data, if any; and (iv) Your entering of Customer Data into the Software. You acknowledge that (i) We will not be held responsible in any way for any Proprietary Right or other rights’ infringement or violation or the violation of any applicable laws, arising or relating to such Customer Data and/or communications; and (ii) that any Personal Data contained in Customer Data has been collected and is maintained in compliance with applicable Data Protection Laws.

7.2 Each party shall, in connection with the exercise of its rights and the performance of its obligations under the Agreement, comply with all applicable Data Protection Laws. To the extent that We process any such Personal Data in the provision of the Software or Support Services, the Data Processing Agreement in Annex B shall apply.

Term and Termination

8.1 Your Subscription commences on the effective date of the Order unless otherwise specified therein. Your Subscription continues for the Initial Subscription Term stated in the Order.

8.2 Termination of any Order shall have no effect on any other Order under this Agreement.

8.3 On termination of Your Subscription or this Agreement for any reason, You shall cease use of the Software and copies thereof and, at Your choice, either (i) delete them from all Your equipment and storage media and certify to Us in writing that you have done so; or (ii) return these items to Us.

Limited Warranties

9.1 Subject to limitations in this Section, We warrant that the Software and any Releases shall substantially perform as specified in the Documentation during the Subscription Term, when used in accordance with the terms of the Agreement. Support Services will be rendered with due care, skill and ability, and in accordance with recognized standard of good practice.

9.2 We do not warrant any specifications other than those set out in the Documentation, including without limitation statements made in presentations of the Software, Our public statements or advertising campaigns. Any warranty other than the limited warranty set out in Section 9.1 must be made in writing and confirmed by Us. You acknowledge and are aware that, in accordance with the current state of technology, the Software can never be fully error-free, or operate entirely without interruption.

9.3 We particularly do not warrant: a against problems caused by Your use of the Software with any third-party software, misuse, improper testing, unauthorized attempts to repair, modifications or customizations to the Software by You or any other cause beyond the range of the intended use of the Software; b against any Malware, data breaches and data losses which could not have been avoided by adequate, state-of-the art security in accordance with Our then-current security practices; or c that the Software will achieve Your intended results, nor that the Software have been developed to meet Your individual requirements.

9.4 During the Subscription Term, if the Software do not conform with the warranty provided in Section 9.1, We will at Our expense correct any such non-conformance or provide You with an alternative means of accomplishing the desired performance. If We cannot reasonably make such correction or substitution, then We may, in Our sole discretion, refund You any prepaid fees covering the remainder of the Subscription Term for the affected Software and terminate Your use of the affected Software for which You have received the refund. SUCH CORRECTION, SUBSTITUTION OR REFUND CONSTITUTES YOUR SOLE AND EXCLUSIVE REMEDY, AND OUR SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THE WARRANTY.

9.5 Warranty claims asserted under one Order shall have no effect on any other Orders or other contracts that are in place between You and Us.

9.6 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES AND REMEDIES PROVIDED IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WARRANTIES OF MERCHANTABILITY, ACCURACY, CORRESPONDENCE WITH DESCRIPTION, FITNESS FOR A PURPOSE, SATISFACTORY QUALITY AND NON-INFRINGEMENT, ALL OF WHICH ARE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXPRESSLY DISCLAIMED BY US.

9.7 You agree that Your purchase of the Software is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments, statements or representations We made regarding future functionality or features.

Intellectual Property Indemnity

10.1 We shall not be liable to You for Infringement Claims where the infringement is caused by: a) unauthorized changes You have made or that have been made on Your behalf to the Software or output thereof; b) Your use of the Software or output thereof outside the scope of the Agreement, Your Subscription, the applicable Order or the materials accompanying the Software.

Confidentiality

12.1 Each party retains all rights in its Confidential Information. Both parties undertake to treat as confidential all of the other party’s Confidential Information acquired before and in connection with the performance of the Agreement and to use such Confidential Information only to perform the Agreement. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of the Agreement. Any reproduction of Confidential Information of the other party shall contain any and all confidential or proprietary notices or legends which appear on the original. With respect to the Confidential Information of the other party, each party: (a) shall take all those steps the receiving party takes to protect its own similar proprietary and Confidential Information, which shall not be less than a reasonable standard of care to keep all Confidential Information strictly confidential; and (b) shall not disclose any Confidential Information of the other to any person other than those Representatives whose access is necessary to enable it to perform the Agreement and who are obliged to maintain confidentiality to a similar extent as provided herein. Each party will be responsible for its Representatives’ compliance with the provisions of this Section.

12.2 A party which becomes aware of a suspected or actual breach of confidentiality, misuse or unauthorized dissemination relating to the other party’s Confidential Information shall inform the other party in writing without undue delay.

12.3 Upon request, the receiving party shall destroy or return to the disclosing party all materials containing any of the Confidential Information and any copies or derivatives prepared therefrom. However, this obligation to return or destroy Confidential Information shall not apply to copies of electronically-exchanged Confidential Information made as a matter of routine information technology backup and to Confidential Information or copies thereof which must be stored by the receiving party according to provisions of mandatory law, provided that such Confidential Information or copies thereof shall remain subject to the confidentiality obligations under this Agreement.

Feedback

13.1 You may, at Your sole discretion, provide Your input regarding the Software, products, services, business or technology plans, including, without limitation, comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of the Software, products and/or services, or input as to whether You believe Our development direction is consistent with Your own business and IT needs (collectively “Feedback”). We shall be entitled to use Feedback for any purpose without notice, restriction or remuneration of any kind to You and/or Your Representatives.

13.2 You acknowledge that any information that We may disclose to You related to the Software, Our other products, services, business or technology plans, under an Order or otherwise, is only intended as a discussion of possible strategies, developments, and functionalities of Our products or services and is not intended to be binding on Us regarding any particular course of business, product strategy, and/or development.

Annex A

Definitions

1 “Affiliate”: any entity that directly or indirectly controls, is controlled by, or is under common control with You or Us, as the case may be, but only for so long as the control exists. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests.

2. “Agreement”: these Terms and any Order between You and Us.

3. “Confidential Information”: any information disclosed to a party by the other party concerning the business and/or affairs of the other party, including but not limited to information relating to a party’s operations, technical or commercial know-how, specifications, inventions, processes or initiatives, plans, product information, pricing information, know-how, designs, trade secrets, software, documents, data and information which, when provided by one party to the other: a) are clearly identified as “Confidential” or “Proprietary” or are marked with a similar legend; b) are disclosed orally or visually, identified as Confidential Information at the time of disclosure and confirmed as Confidential Information in writing within 10 (ten) days; or c) a reasonable person would understand to be confidential or proprietary at the time of disclosure.

4. “Customer Data”: the data and information provided by You to Us through Your use of the Software.

5. “Data Protection Laws”: all laws, rules, regulations, decrees, or other enactments, orders, mandates, or resolutions relating to privacy, data security, and/or data protection, and any implementing, derivative or related legislation, rule, and regulation as amended, extended, repealed and replaced, or re-enacted, as well as any applicable industry self-regulatory programs related to the collection, use, disclosure, and security of Personal Information including the General Data Protection Legislation (GDPR).

6. “Documentation”: the product description of the applicable Software, as made available by Us on the ADLSolution website.

7. “Fees”: the fees payable by You for the Subscription as set out in an Order.

8. “Force Majeure Event”: acts, events, omissions or accidents beyond Our reasonable control, including, without limitation, strikes, industrial disputes, failure of a utility service or transport network, acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of machinery, act of terror, Internet service provider failure or delay, denial of service attack, fire, flood or storm, but excluding (a) financial distress or the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) a party’s financial inability to perform its obligations hereunder.

9. “Initial Subscription Term” : the initial term of Your Subscription as agreed in the Order which commences on the date of acceptance of the Order or as otherwise agreed to by the parties.

10. “Major Release”: a Release of the Software that is designated by Us as such in accordance with our then-current naming convention (e.g. Major Release 3 -> Major Release 4).

11. “Malware”: any thing or device (including any software, code, file or program) which may prevent, impair or otherwise adversely affect the access to or operation, reliability or user experience of any computer software, hardware or network, telecommunications service, equipment or network or any other service or device, including worms, trojan horses, viruses and other similar things or devices.

12. “Metrics Definition” : the then current document(s) made available by Us as “ADLSolution Definition license scope/subscription scope”.

13. “Minor Release”: a Release of the Software within a given Major Release that We designate through a respective change in numbering in accordance with our then-current naming convention (e.g. Release 4.2 -> Release 4.3).

14. “Order”: an order entered into between You and Us specifying the Subscription You have ordered, and the Fees owed thereunder, and such other terms as are agreed, including any addenda and supplements thereto.

15. “Personal Data”: any data and information relating to an identified or identifiable living individual person as defined under applicable Data Protection Laws.

16. “Proprietary Rights” : rights in patents, utility models, trademarks, service marks, trade names, other trade-identifying symbols and inventions, copyrights, design rights, database rights, rights in know-how, trade secrets and any other intellectual property rights, anywhere in the world, whether registered or unregistered, and including applications for the grant of any such rights.

17. “Release”: any new Major Release, Minor Release, bug-fix or patch We make available to You for Your Subscription.

18. “Renewal Term”: has the meaning set out in Section 8.1.

19. “Representatives”: of a party are its and its Affiliates’ employees, directors, advisers and subcontractors.

20. “Software”: the ADLSolution standard software or an App or an Application made available to You pursuant to an Order. Software includes Releases but does not include any modification or add-ons to the Software.

21. “Subscription”: the subscriptions You purchase under an Order for Your use of to the Software and Support Services in accordance with the Agreement.

22. “Subscription Fees ”: the Fees payable for the Software as set out in an Order.

23. “Subscription Term” : the Initial Subscription Term and any subsequent Renewal Terms as set out in an Order.

24. “Support Services”: the support services, as described in the Support Services Description, that We provide to You in respect of the Software.

25. “Support Services Description” : the then-current documents describing in more detail the Support Services and made available by Us to You.

26. “Taxes”: any applicable sales, use, value added, duties, assessments, excise, withholding or other taxes assessable by any jurisdiction whatsoever based on the applicable Order Form.

27. “Terms”: this ADLSolution Software Subscription Agreement.

28. “Territory”: the country of Your registered business seat as defined in the Order.

29. “User”: those employees, agents and independent contractors of Yours or Your Affiliates who are authorized by You to use the Software in accordance with the Agreement, and to whom You have supplied a user identification and password (if applicable).

30. “We,” “Us”, “Our” or “ADLSolution”: the ADLSolution entity entering into the applicable Order with You.

31. “You” or “Your”: the company or other legal entity that enters into the applicable Order with ADLSolution.