Last updated: 06.12.2021
IF YOU HAVE A SEPARATE, SIGNED AGREEMENT WITH US GOVERNING YOUR USE OF THE SERVICES, THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS IN THIS AGREEMENT. IF YOU DO NOT, BY (1) CHECKING A BOX INDICATING YOUR ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING THE SERVICES IN WHOLE OR IN PART, YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DISAGREE, YOU DO NOT HAVE THE RIGHT TO ACCESS OR USE THE SERVICES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY. THIS AGREEMENT IS EFFECTIVE AS OF THE EARLIER OF (A) THE EFFECTIVE DATE OF THE FIRST ORDER REFERENCING THIS AGREEMENT, OR (B) AS OF YOUR INITIAL ACCESS TO THE SERVICE (“EFFECTIVE DATE ”).
All definitions not defined in the main body of this Agreement are specified in Annex A.
2.1 This Agreement governs Your access to and use of the Services specified in the applicable Order or purchased by You via an online platform. This Agreement will commence on the Effective Date and continue until the earlier of: (i) termination for cause in accordance with Section 13, or (ii) expiration of all Orders under this Agreement.
2.2 In the event of any inconsistencies between this Agreement and an Order between You and Us, this Agreement shall take precedence over the Order, unless expressly indicated otherwise in such Order. Any terms included in your purchase order, general terms of business or other document issued by You is for Your administrative convenience only and will not be binding on Us.
3.1 During the Subscription Term, and subject to the terms and conditions of this Agreement and any limitations specified in an Order, We shall: (i) make the Services available to You in accordance with the Documentation and Service Level Agreement, (ii) provide Support Services in accordance with the Support Services Description, and (iii) provide the Professional Services as further described in each Order.
3.2 We are solely responsible for all matters relating to the payment of Our employees and contractors, including without limitation providing compensation and other benefits such as vacation or sick pay, social security, medical care, unemployment or disability insurance, worker’s compensation, health and welfare benefits, profit sharing, retirement/pension, or any employee stock option or stock purchase plans and complying with all other federal, state and local laws, rules and regulations governing such matters.
4.1 Subject to the terms of this Agreement, and except as otherwise permitted in the Documentation, during the Subscription Term, You may enable User access to and use of the Services solely for Your internal business purposes in accordance with the limitations specified in the Metrics Definition and not for the benefit of any third parties. Your third-party suppliers or contractors may access and use the Services for the sole purpose of providing their goods and/or services to You. You will be entitled to copy the Documentation and materials accompanying the Service as may reasonably be required for Your internal purposes.
4.2 You shall: (i) be responsible for Your Users’ compliance with this Agreement, the Documentation and any use limitations specified in the applicable Order or online purchasing portal; (ii) comply with all applicable laws in connection with Your performance under this Agreement, including without limitation privacy, export control, and sanction laws; (iii) use commercially reasonable efforts to prevent any unauthorized access to or use of the Services and promptly notify Us in the event of any such unauthorized access or use; (iv) have sole responsibility for the accuracy, quality, and legality of all Customer Data and Customer Materials; (v) be solely liable for uploading Customer Data and making appropriate backups of such Customer Data; (vi) obtain any legally-necessary consents and/or provide required privacy notices to any party whose personal data you input into the Service or otherwise provide Us; (vii) cooperate with Us on any matters relating to the Professional Services as set out in the Order and provide Us with prompt feedback to Our requests; and (viii) in the event Professional Services are provided on Your premises, provide Us with safe and adequate space, power, network connections, materials, CPU time, access to hardware, software and other equipment and information, and assistance from qualified personnel as We may reasonably request from time to time.
4.3 In connection with this Agreement, You shall not: (i) use the Services for the benefit of anyone other than Yourself or Your Affiliates, unless expressly stated otherwise in an Order or the Documentation; (ii) send, store or transfer infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including material that violates privacy rights or third-party Proprietary Rights; (iii) upload, input, access, store, distribute or transmit any Malware; (iv) except as specified in the Documentation, modify, copy, translate or create derivative works based on a Service or any part, feature, function or user interface thereof; or (v) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Services to build a competitive product or service or one with similar ideas, features, functions or graphics or to determine whether the Services are within the scope of any patent.
4.4 Any use of the Services in breach of this Section 4 may result in: (i) termination for breach in accordance with Section 13, or (ii) the immediate suspension of the Services if, in Our sole and absolute discretion, such use threatens the security, integrity or availability of the Services. We shall promptly notify You of any such suspension. Where reasonable to do so, We shall (a) provide such notification in advance and (b) work with You in good faith to cure the breach prior to suspending Your access.
4.5 We may, in our discretion, make Cloud Service-related scripts, schema and/or code that can be used to create process analysis applications for the Cloud Service platform (collectively, the “vencortex Schema”) available to You. In such event, You are granted for the relevant Subscription Term a limited, non-exclusive, revocable license to use and modify the vencortex Schema for purposes of implementing Your permitted use of the Cloud Service. As between You and vencortex, You will be owner of all right, title and interest in and to any modifications You make to the vencortex Schema, subject always to Our underlying ownership interest in and to all of the vencortex Schema and Services from which Your modifications derive.
5.1 This Section applies if and to the extent We provide You with Non-vencortex Applications, a Proof of Value, a Customer Value Resource or any no-cost Services (collectively, “Additional Services”). In the event of a conflict between this Section and any other portion of this Agreement, this Section shall control. In some circumstances, Additional Services are subject to limitations specified in the Order, Metrics Definition or Documentation. Your use in excess of such limits may require You to make a purchase.
5.2 Unless expressly agreed otherwise in the applicable Order, We may terminate Your access to any Additional Services (or portion thereof) upon written notice at any time for any reason and without liability of any kind. Upon such termination, You will be given a reasonable opportunity to retrieve Customer Data.
5.3 Your use of or access to any Non-vencortex Applications, including without limitation (i) any terms and conditions or metrics applicable to such use or access and (ii) any exchange of data between You and any non-vencortex provider, is solely between You and the applicable provider. We are not a party to, nor are We liable for, Your use of or access to any Non-vencortex Application, Your exchange of data with such third party, or Your compliance with any third-party terms and conditions. 5.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT (INCLUDING ANY ANNEXES OR SUPPLEMENTS HERETO) OR ANY ORDER, THE ADDITIONAL SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. THE SERVICE LEVEL AGREEMENT SHALL NOT APPLY TO ADDITIONAL SERVICES AND NO SUPPORT WILL BE PROVIDED. WE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS OR LIABILITY OF ANY KIND WITH RESPECT TO THE ADDITIONAL SERVICES (WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT OR OTHERWISE). WHERE SUCH EXCLUSION OF LIABILITY IS PROHIBITED UNDER APPLICABLE LAW, OUR TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED $1,000.00, WHICH THE PARTIES AGREE IS A FAIR AND REASONABLE AMOUNT.
6.1 Except as expressly stated herein, Subscription Fees are non-refundable. Where your Order is directly with vencortex, You shall pay Us the fees agreed in the applicable Order, Your vencortex Cloud Services environment or other online platform in accordance with the terms specified therein. Where you have ordered via an Authorized Reseller, You shall pay the fees agreed with such Authorized Reseller.
6.2 If, in good faith, You dispute the accuracy of any portion of Our invoice, then You shall pay all undisputed portions of the invoice when due, but may withhold any portion that is disputed provided You provide Us with written notice of such dispute at least 10 days prior to the invoice due date and use commercially reasonable efforts to resolve the dispute promptly.
6.3 Unless otherwise specified in the applicable Order Form, all fees for the Services exclude any direct or indirect taxes, levies, duties, or similar governmental assessments, including without limitation, any sales, use, value-added, withholding, or similar taxes (“Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder directly to the taxing authority. As an exception to the foregoing, if We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount shall be included as a line-item on Your invoice and will be payable by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. If any such withholding or deduction is required by law, You shall pay Us such additional amount(s) as will ensure that We receive the same total amount that We would have received if no such withholding or deduction had been required. We are solely responsible for taxes based upon our net income, assets, payroll, property, and employees.
6.4 Without prejudice to any other rights We may have, if any undisputed invoice is not paid by its due date, or if We verify that You have not paid an Authorized Reseller in accordance with the relevant partner agreement, We shall be entitled to disable Your access to that part of the Services affected by Your non-payment upon thirty (30) days’ prior written notice thereof.
7.1 As between You and Us, We are and remain exclusive owners of all right, title, and interest (including without limitation the Proprietary Rights) in and to the Services. We have, and may in the course of performing the Services, develop certain general ideas, concepts, know-how, methods, techniques, processes, and skills pertaining to the Services and vencortex Materials (“Residual Knowledge”). We shall not be prohibited or enjoined from using Residual Knowledge, other than Customer Materials and Customer Confidential Information, for any purpose, including providing services to other customers. No rights are granted to You other than as expressly set forth herein.
7.2 As between You and Us, You are and remain the exclusive owner of all right, title and interest (including without limitation the Proprietary Rights) in and to Customer Data and Customer Materials. You grant Us, Our Affiliates and any subcontractors approved in accordance with Section 17.1 below a worldwide, limited-term, revocable, non-exclusive license to use, host, transmit, monitor, manage, replicate, access, store, cache, aggregate and/or anonymize Customer Data, and to transfer Customer Data to such subcontractors, in each case solely as necessary to perform Our obligations to You under this Agreement or in accordance with the vencortex Privacy Notice. No rights are granted to Us other than as expressly set forth herein.
7.3 To the extent You provide feedback regarding Our Services, products, business or development plans, or technology roadmaps, including, without limitation, comments or suggestions regarding the possible creation, modification, correction, improvement or enhancement of the Services or other products (collectively “Feedback”), You hereby grant Us a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate such Feedback for any legitimate business purpose without restriction. We are under no obligation to use the Feedback.
8.1 Each party retains all Proprietary Rights in its Confidential Information. Except as expressly authorized herein, each Party will hold in confidence and not disclose any Confidential Information of the other party except: (i) to its Representatives who have a need to know such information for purposes of performing under this Agreement and who agree in writing to keep the information confidential on terms no less restrictive than those contained in this Agreement; (ii) as permitted in writing by the other party; (iii) to the extent required under applicable law or regulation after giving the receiving party (if legally allowed) an opportunity to seek legal protection or otherwise prevent or limit disclosure of the Confidential Information; or (iv) to the extent such Confidential Information becomes public through no fault of the receiving party. The parties each shall have the right to provide the Authorized Reseller with this Agreement. The parties will ensure that their Representatives comply with this Agreement and will be responsible for any unauthorized use or disclosure of Confidential Information by such Representatives.
8.2 Upon request, the receiving party shall destroy or return to the disclosing party all materials containing any of the Confidential Information. A party’s obligation to return or destroy Confidential Information does not apply to the extent: (i) required by applicable law or regulation, or (ii) contained in archived computer system backup made in accordance with the receiving party’s security or disaster recovery procedures, provided in each case that any retained Confidential Information shall remain subject to the confidentiality obligations of this Agreement until so returned or destroyed. The parties acknowledge that unauthorized disclosure of Confidential Information may cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure, the disclosing party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
9.1 In the performance of Our obligations to You under this Agreement, We shall: (i) maintain appropriate administrative, physical, organizational and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data, including, but not limited to measures designed to protect against the unauthorized access to or disclosure of Customer Data; and (ii) comply with any information security standards or protocols found in the vencortex Trust Center.
9.2 If in the course of providing the Services We process any Personal Data contained in the Customer Data, the Data Processing Agreement shall apply to such processing. Your use of the Services is subject to the terms of the vencortex Privacy Notice.
9.3 Each party shall, in connection with the exercise of its rights and the performance of its obligations under this Agreement, comply with all applicable Data Protection Laws.
9.4 Customer Data is available to You for export or download at any time during the Subscription Term. Except as specified in Section 9.5 below, within 30 days of the termination or expiration of Your Subscription, We will delete or destroy any Customer Data then in our possession, unless applicable law requires retention for a longer period. Any retained data is subject to the confidentiality provisions of this Agreement.
9.5 At the conclusion of a Proof of Value, We will retain Your DeOS Workspace, Customer Data and any analysis generated during such Proof of Value (collectively the “POV Content”) for a maximum period of nine (9) months (the “Dormant Period”) unless You otherwise request return or destruction of the POV Content in writing. The POV Content may not be accessed by You or Us during the Dormant Period and will remain subject to Section 8 (Confidentiality) until returned or deleted. If You purchase Cloud Services during the Dormant Period, We will reactivate Your DeOS Workspace and transfer the POV Content to a productive DeOS Workspace instance; if You do not, We will delete or destroy the POV Content without further notice.
10.1 We warrant that during an applicable Subscription Term: (a) the Services will substantially perform as specified in the Documentation when used in accordance with the terms of this Agreement; (b) We will not materially reduce the overall level of beneficial service provided to you under the Service Level Agreement; (c) the Services have been properly tested for Malware and, to the best of Our knowledge (including without limitation scanning with current versions of industry-standard antivirus software) the Services, as delivered by Us, do not contain Malware; and (d) Professional Services will be performed in a professional, workmanlike manner with reasonable skill and care in accordance with industry standards.
10.2 Our sole liability (and Your exclusive remedy) for any breach of the foregoing warranty shall be to correct the nonconformity, provide You with a functionally equivalent replacement, or, in the case of Professional Services, re-perform the nonconforming services, provided you have notified us of such nonconformity within thirty (30) days of the performance thereof. If We cannot reasonably make such correction, substitution or re-performance, as determined in Our sole discretion acting in good faith, We will refund You (or, in the case, Your Subscription is purchased through an Authorized Reseller, arrange through such Authorized Reseller, the refund of) any prepaid fees covering the remainder of the Subscription Term for the nonconforming Service (or any Fees paid for the nonconforming Professional Services) and terminate Your access to and use of the affected Service for which You have received the refund.
10.3 Each party hereby warrants to the other that: (a) it has the authority to enter into the Agreement, to grant the rights granted by it under the Agreement, and to perform its obligations under the Agreement; and (b) it will comply with all applicable laws and regulations in effect during the term of the Agreement as they apply to such party’s rights obligations under the Agreement.
10.4 EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
We shall defend and/or settle, at Our expense, any third-party claim brought against You or Your Representatives alleging that Your use of the Services (or any part thereof) in compliance with the terms of this Agreement infringes the Proprietary Rights of such third-party (“Infringement Claim ”).
We shall indemnify You and Your Representatives against any Losses arising from the Infringement Claim or settlement amounts agreed to in writing by Us in relation to the Infringement Claim. In the event of an Infringement Claim, and in addition to our indemnity obligations,
We shall, at Our option and expense: (i) modify or replace the affected Service to eliminate the alleged infringement without loss of material functionality; (ii) procure a license to enable You to continue using the Services; or (iii) terminate Your Order for the affected Services with immediate effect and reimburse You any prepaid Fees covering the remainder of the applicable Subscription Term.
You shall defend and/or settle, at Your expense, any third-party claim brought against Us or Our Representatives arising from or related to the Customer Materials (“Customer Materials Claim ”). You shall indemnify Us and Our Representatives against any Losses arising from or related to the Customer Materials Claim or settlement amounts agreed to in writing by You in relation to such Customer Materials Claim.
A party relying on an indemnity hereunder must: (i) provide prompt written notice that a claim has been made, provided that an indemnifying party shall only be relieved of its obligations hereunder if and to the extent it is prejudiced by a delay in such notification; (ii) cooperate in the defense of the claim; (iii) not enter into any settlement without the indemnifying party’s prior written consent; (iv) not make any admissions related to the claim; (iv) allow the indemnifying party to exclusively control the defense, negotiations and any settlement of the claim; and (v) use reasonable efforts to mitigate against Losses.
11.4 Exclusive Remedy
This Section 11 constitutes the indemnifying party’s sole liability, and the indemnified party’s exclusive remedy, for any third-party claim described herein.
12.1 GENERAL LIMITATION. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY AND ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF: (A) THE TOTAL AMOUNT OF FEES PAYABLE BY YOU FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE DATE OF THE EVENT FOR WHICH THE LIABILITY ARISES; OR (B) $100,000 U.S. DOLLARS. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE THEORY OF LIABILITY.
12.2 DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR OTHER INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, ANTICIPATED SAVINGS, BUSINESS OPPORTUNITY, GOODWILL OR REPUTATION, LOSS OF REVENUE, OR COSTS OF COVER, HOWEVER, CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, NEGLIGENCE OR OTHERWISE), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.3 EXCLUSIONS. THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO EITHER PARTY’S: (A) INDEMNIFICATION OBLIGATIONS, (B) LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY A PARTY’S NEGLIGENCE OR THAT OF ITS REPRESENTATIVES, (C) FRAUD OR FRAUDULENT MISREPRESENTATION, (D) WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, (E) VIOLATION OF THE OTHER PARTY’S PROPRIETARY RIGHTS, (F) PAYMENT OBLIGATIONS UNDER THIS AGREEMENT, OR (G) LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
The Initial Subscription Term of each Subscription shall be as agreed in the applicable Order. Thereafter, each Subscription will automatically renew for successive periods of 12 months (each a “Renewal Term”) at the rate agreed in the applicable Order (if any) unless a party provides at least thirty (30) days prior written notice to the other party of its intention not to renew the Subscription.
Each Order for Professional Services shall take effect on the Order date and remain in effect until (i) all Professional Services under such Order have been provided, or (ii) the applicable Order is terminated for convenience by either party by providing thirty (30) days’ prior written notice to the other party. 13.3 Termination for Breach . Without prejudice to any other rights or remedies to which a party may be entitled, either party may terminate an Order without liability to the other at any time with immediate effect upon written notice if the other party is in material breach of any of its obligations under this Agreement or an Order and, in the case of a breach which is capable of remedy, fails to remedy such breach within thirty (30) days of notice of the breach. Termination of one Order shall have no effect on any other Order.
The Services (and derivatives thereof) may be subject to export laws and regulations of the United States and other jurisdictions (“Export Laws”). You will not and will not allow any third party to (i) export, re-export, or transfer any part of the Services to countries, persons, or entities prohibited by Export Laws or (ii) permit any User to access or use the Services in or from a U.S.- embargoed country or region. We may block, restrict, limit, or suspend access to the Services by any User that is subject to any applicable sanctions or embargoes. Each party represents that as of the Effective Date, it is not named on any U.S. government denied-party list.
The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement. In the event of a conflict between any mandatory statutory law in the country where You are domiciled and the provisions of this Agreement, the statutory law shall prevail, but only to the extent: (i) such statute is directly applicable to You and to the Services, and (ii) the parties are legally unable to contractually deviate from such statute(s) in this Agreement. Excluding conflict of laws rules, this Agreement shall be governed by and construed as follows: If You are domiciled in: Governing Law: Courts with exclusive jurisdiction: North or South America New York State New York City Japan Japan Tokyo Asia (excluding Japan) Singapore Singapore Germany Germany Munich Any other jurisdiction England and Wales London
Where required by the applicable Governing Law set forth above, this Agreement is varied in accordance with this Section
In the event of a conflict between this Section and any other portion of this Agreement, this Section shall control. Where this Agreement is subject to German law, the following shall apply:
a. In no event shall the aggregate liability of each party and its Affiliates arising out of or related to this agreement exceed the greater of:
(i) the total amount of fees payable by You for the Services giving rise to the liability in the twelve (12) months preceding the date of the event for which the liability arises; or
(ii) $500,000.00 U.S. Dollars
b. The limitations specified in the foregoing paragraph shall not apply to either party’s:
(A) indemnification obligations, (B) negligently or willfully caused damages relating to death or personal injury, (C) willful misconduct or gross negligence (grobe Fahrlässigkeit), (D) violation of the other party’s Proprietary Rights, (F) payment obligations under this agreement, or (G) liability pursuant to the Product Liability Act (Produkthaftungsgesetz).
c. The strict liability of the lessor for breaches of warranty upon commencement of the lease (verschuldenunsabhängige Haftung für anfängliche Mietmängel) in accordance with Section 536a (1) Alt. 1 of the German Civil Code shall be excluded.
d. All contractual and non-contractual claims for damages or vain expenditures against Us shall be time-barred after a period of one (1) year. The period of limitation shall commence in accordance with Section 199 (1) German Civil Code. The period of limitation shall, at the latest, be deemed completed five (5) years after the claim arose.
e. This Section 16.2(i) shall not apply in the case of willful misconduct, gross negligence or in view of personal damages under the Product Liability Act. ii.
We may subcontract all or part of the Services to the third parties specified in the Data Processing Agreement, to Our Affiliates, and as otherwise agreed by You in writing. We remain liable for any subcontractors used in the performance of Our obligations under the Agreement.
Neither party may assign or otherwise transfer this Agreement (in whole or in part) without the prior written consent of the other (such consent not to be unreasonably withheld) except as part of the sale of all or substantially all of a party’s assets (or analogous arrangement) where: (i) the assignee agrees to be bound by the terms of this Agreement without modification and is capable of fully performing hereunder; (ii) the assignor is in full compliance with this Agreement (including without limitation any payment obligations hereunder); and (iii) where You are the assignor, the assignee is not Our director competitor. Notwithstanding the foregoing, We may at any time upon notice to You assign or otherwise transfer Our rights and obligations under this Agreement (including any Order) to any of Our Affiliates. Any attempt to otherwise transfer or assign this Agreement will be null and void.
The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, employment or any such similar relationship between You and Us.
Nothing in this Agreement is intended to, nor shall create, any right enforceable by any third party not a party to this Agreement. The consent of a third party shall not be required for the amendment, variation or termination of this Agreement.
This Agreement constitutes the entire agreement between the parties regarding Your use of and access to the Services and supersedes all prior and contemporaneous agreements, proposals, and representations, whether written or oral, concerning the subject matter hereof. This Agreement cannot be altered, amended, or modified except in a writing accepted by duly authorized representatives of the parties. The parties agree that any representation, warranty, or condition not expressly contained in this Agreement or in an authorized written amendment hereto shall not be enforceable by either Party.
If any court of competent jurisdiction finds any provision of this Agreement to be invalid, unenforceable or illegal, such provision shall be severed from this Agreement, but the other provisions of this Agreement shall remain in full force and effect.
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
Neither party shall be in breach of its obligations under this Agreement (other than payment obligations) or incur any liability to the other party for any delay or failure to perform its obligations hereunder if and to the extent such delay or nonperformance is caused by a Force Majeure Event. The party affected by the Force Majeure Event shall: (i) promptly inform the other party of such delay or nonperformance; (ii) use commercially reasonable efforts to avoid or remove the underlying cause of the delay or nonperformance; and (iii) resume performance hereunder as soon as reasonably practical following the removal of the Force Majeure Event.
All notices hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, or (ii) two business days after sending by e-mail. E-mails to Us shall be directed to Our Chief Legal Officer at (legal@vencortex.io), and e-mails to You shall be addressed to the administrative contact designated in Your Order. Notices relating to a party’s indemnity obligations must be sent by registered mail and email.
The terms which by their nature are intended to survive termination or expiration of the Agreement shall survive any such termination and expiration.
This Agreement may be signed in any number of copies and each shall be an original. All the copies shall together be one and the same agreement.
Regardless of any language into which this Agreement may be translated, the official, controlling, and governing version of this Agreement shall be exclusively the English language version.
1. “Affiliate”: any entity that directly or indirectly controls, is controlled by, or is under common control with a party, but only for so long as such control exists. As used here, "Control," means direct or indirect ownership or control of more than 50% of the voting interests.
2. “Agreement”: this Master Services Agreement, including (i) any Order referencing this Agreement and (ii) any terms and conditions specifically referenced in this Agreement or an Order.
3. “Authorized Reseller ”: a reseller, distributor or other partner authorized by vencortex to sell vencortex products or services.
4. “vencortex Materials”: any software, programs, tools, systems, data, vencortex Confidential Information or other materials made available by Us to You under this Agreement, excluding Non-vencortex Applications.
5. “vencortex Privacy Notice”: the then-current privacy policy found at https://www.vencortex.io/privacy-policy and incorporated herein by reference.
6. “vencortex Trust Center ”: the website containing vencortex’ security governance information at https://www.vencortex.io/trust-center/.
7. “Cloud Service”: the vencortex software-as-a-service platform, and the Documentation, but excluding Non-vencortex Applications and any links to third-party products or services contained in the Cloud Service.
8. “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 identified as Confidential Information at the time of disclosure and confirmed as Confidential Information in writing within a reasonable period of time after disclosure, or c) a reasonable person would understand to be confidential or proprietary at the time of disclosure.
9. “Customer Data”: the (i) data and information provided by You to Us and/or input, uploaded and/or shared by You, Your Users or Us on Your behalf, for the purpose of using the Cloud Service or facilitating Your use of the Services, or (ii) data You collect and process through Your use of the Cloud Service, in each case excluding aggregated and anonymized information collected, processed or disclosed pursuant to the vencortex Privacy Notice.
10. “Customer Materials”: any materials, data, information, software, equipment or other resources owned by or licensed to You and made available to Us pursuant to facilitating Your use of the Services, including Customer Data and Output.
11. “Customer Value Resource ”: vencortex resource(s) which may be made available to You.
12. “Data Processing Agreement ”: the then-current Data Processing Agreement (including its supplements and annexes) in effect as of the effective date of Your Initial Subscription Term and each subsequent Renewal Term (as applicable) found at https://www.vencortex.io/terms-and-conditions/ and incorporated herein by reference.
13. “Data Protection Laws ”: all applicable 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 Data.
14. “Documentation”: the then-current product description of the applicable Services, as made available by Us on the vencortex website found at https://www.vencortex.io/terms-and-conditions/ and incorporated herein by reference.
15. “DeOS Workspace”: a password secured tenant within the multi-tenant cloud environment in which the Cloud Service runs, sharing resources across tenants and providing data isolation for each tenant.
16. “Fees”: the fees payable by You for the Services as set out in an Order.
17. “Force Majeure Event ”: acts, events, omissions, or accidents beyond a party’s 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, the 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.
18. “Initial Subscription Term ”: the initial term of Your Subscription as specified in the Order.
19. “Losses”: any and all costs, liabilities, losses, and expenses (including, but not limited to, reasonable attorneys' fees) finally awarded by a court of competent jurisdiction.
20. “Malware”: any program or device (including any software, code, or file) which is intended to 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 without limitation worms, trojan horses, viruses, ransomware, trap doors, and other similar malicious devices.
21. “Metrics Definition”: the then-current description of the Services metrics made available by Us as “Metrics Definition” on the vencortex website under https://www.vencortex.io/terms-and-conditions/.
22. “Non-vencortex Application ”: a third-party software application or functionality that interoperates with all or part of the Services.
23. “Order”: an ordering document or online order form that: (i) incorporates or references this Agreement and (ii) specifies the Services ordered and the Fees owed. Orders may be between You and Us or You and an Authorized Reseller.
24. “Output”: means any (i) content in the form of files and/or images generated by the Cloud Service that, as part of the documented functionality of the Cloud Service, are exported, printed, downloaded and/or extracted from the Cloud Service by an Authorized User during the Subscription Term, and (ii) documentation deliverables identified as such in a statement of work for Professional Services.
25. “Personal Data ”: any data and information relating to an identified or identifiable living person as defined under applicable Data Protection Laws.
26. “Professional Services ”: the consulting and/or professional services related to the Services provided by Us to You as described in the applicable Order. Except as expressly agreed otherwise in an Order, Professional Services are limited to implementation and configuration support relating to the Cloud Service and shall in no event be considered a “works made for hire” engagement. For avoidance of doubt, Customer Value Resources are not Professional Services.
27. “Proof of Value”: Your use of the Services as part of a demonstration provided by Us solely to enable You to determine whether to purchase a Subscription for the Services.
28. “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.
29. “Renewal Term”: has the meaning set out in Section 13.1.
30. “Representatives ”: of a party are its and its Affiliates’ employees, officers, directors, advisers, agents and subcontractors.
31. “Service Level Agreement ”: the then-current service levels for the Services as set out in the Order, or if none are specified, as found under “Service Level Agreement SaaS” at https://www.vencortex.io/terms-and-conditions/ and incorporated herein by reference.
32. “Services”: the services provided under an Order or made available to You under this Agreement, including the Cloud Service, Support Services, Additional Services, and Professional Services, each as described in the applicable Documentation. Services exclude Non-vencortex Applications.
33. “Subscription ”: the subscriptions You purchase under an Order for Your use of and access to the Services in accordance with this Agreemen
t.
34. “Subscription Fees ”: the Fees payable for access to the Cloud Service as set out in an Order.
35. “Subscription Term ”: the Initial Subscription Term and any subsequent Renewal Terms.
36. “Support Services ”: the support services, as described in the Support Services Description, that We provide to You in respect of the Cloud Service.
37. “Support Services Description ”: the detailed description of the Support Services as included in the applicable Order or if none are specified, as found under “Support Services and Service Level Agreement” at https://www.vencortex.io/terms-and-conditions/ and incorporated herein by reference.
38. “User”: those employees, agents and independent contractors of Yours or Your Affiliates (including third-party suppliers and/or contractors) who are authorized by You to access and use the Services in accordance with this Agreement, and to whom You have supplied a user identification and password (if applicable).
39. “We,” “Us”, “Our” or “vencortex”: the vencortex entity entering into the applicable Order with You.
40. “You” or “Your”: the company or other legal entity that enters into the applicable Order with vencortex.
You acknowledge that you have read this Agreement and agree to all its terms and conditions. By using the DeOS or its Services you agree to be bound by this Agreement. If you do not agree to abide by the terms of this Agreement, you are not authorized to use or access DeOS and its Services.
If you have any questions about this Policy, please contact us.
vencortex®
vencortex UG
Fünffensterstrasse 2
34117 Kassel, Germany
Phone: +49 176 4345 1508
E-Mail: info@vencortex.io
Registergericht: AG Kassel
Registernummer: HRB 17835
CEO: Dr. Dominik Dellermann
Data Protection Officer (DPO): Dr. Nikolaus Lipusch
VAT-ID: DE323639835
Sitz der Gesellschaft: Kassel, Germany
