GENERAL TERMS AND CONDITIONS SOFTWARE LICENSE AND/OR SERVICE AGREEMENT
Unica ICT Solutions
1. Definitions
In these general terms and conditions the following expressions have the following meaning:
1.1 Authorized User: Customer’s employee, representative,
consultant, agent or contractor who (i) is authorized to use the Software
pursuant to payment by Customer of the Subscription Fee for such user, (ii)
is registered as authorized user in the administration of Unica ICT Solution and (iii)
has been supplied a user ID and password by Unica ICT Solution, if applicable.
1.2 Business Day: any day which is not a Saturday, Sunday
or public holiday in The Netherlands.
1.3 Confidential Information: means all information provided by one party
(“Discloser”) to the other party (“Recipient”) pursuant to an agreement,
which is specifically designated by the Discloser as “confidential” (or
which should be considered confidential by the parties) relating to the
research, development, products, processes, trade secrets, business plans,
customer, finances, and personnel data related to the business of
Discloser. Confidential Information does not include any information (i)
which has become publicly known through no wrongful act of the Recipient;
(ii) which the Recipient developed independently, as evidenced by
appropriate documentation; or (iii) which the Recipient becomes aware of
from any third party not bound by non-disclosure obligations to the
Discloser and with the lawful right to disclose such information to
Recipient. Notwithstanding the foregoing, specific information will not be
deemed to be within the foregoing exceptions merely because it is contained
within more general information.
1.4 Customer: any person or entity, which purchases and/or downloads,
copies, installs or uses the Software or makes use of the Services.
1.5 Customer Data: data, including text, sound, video, image files or
software that are provided to Unica ICT Solution by or on behalf of Customer.
1.6 Documentation: the documentation made available to
Customer by Unica ICT Solution online via a web address, notified by Unica ICT Solution to
Customer from time to time, which sets out a description of the Software
and/or the Services and/or related user instructions.
1.7 Unica ICT Solution: a private company with limited liability,
having its registered office in Lemelerveld, the Netherlands, and its
business office at Ambachtsweg 18, 8152 BA Lemelerveld, The Netherlands,
registered in the Dutch trade register under file number 50170759.
1.8 Effective Date: the date of the Order Confirmation.
1.9 Free Trial: costless trial of Software, which shall only be applicable
if expressly agreed by Parties.
1.10 Free Trial Term: 30 days.
1.11 Initial Subscription Term: the initial term of the
agreement laid down in the Order Confirmation, being 1 year and starting at
the Effective Date.
1.12 Normal Business Hours: Business Days from 9.00 am to
6.00 pm Central European Time.
1.13 Order Confirmation: the written confirmation from Unica ICT Solution to the
Customer containing the agreements between Customer and Unica ICT Solution for use of
the Software and/or the Services after the Free Trial Term, if applicable.
1.14 Parties: Unica ICT Solution and Customer collectively.
1.15 Party: Unica ICT Solution and Customer individually.
1.16 Renewal Period: the period of twelve (12) months
automatically following an Initial Subsription Term.
1.17 Service: service provided by Unica ICT Solution to Customer
including support, consultancy and other services provided pursuant to an
Order Confirmation.
1.18 Software: the online software (applications), such as
Microsoft Dynamics, provided by Unica ICT Solution to Customer as described in the
Free Trial orders of Customer and/or the Order Confirmation(s).
1.19 Software License: software license(s) of Unica ICT Solution as described in the
Free Trial orders of Customer and/or the Order Confirmation(s).
1.20 Subscription Fee: the total sum of fees per subscription of each
Authorized User.
1.21 Terms: these general terms and conditions which apply to Order
Confirmations.
1.22 Virus: a thing or device (including any software,
code, file or programme) which may:
a. prevent, impair or otherwise adversely affect the operation of any
computer software, hardware or network, any telecommunications service,
equipment or network or any other service or device;
b. prevent, impair or otherwise adversely affect access to or the operation
of any program or data, including the reliability of any program or data
(whether by re-arranging, altering or erasing the program or data in whole
or part or otherwise); or
c. adversely affect the user experience, including worms, trojan horses,
viruses and other similar things or devices.
Definitions in the singular shall include the plural and vice versa.
2. General terms and conditions
2.1 When Customer subscribes for a Free Trial of the Software it
unconditionally agrees to these Terms. Only these Terms apply to the
relationship between Customer and Unica ICT Solution. Parties hereby explicitly waive
the applicability of other general terms and conditions.
2.2 Parties may deviate from the Order Confirmation, provided such
deviation is agreed upon in writing. Provisions in the Order Confirmation
shall always prevail provisions in the Terms.
2.3 Unica ICT Solution is entitled to unilaterally amend the Terms. If Unica ICT Solution does
so, it will notify Customer, either through user interfaces, in an email
message, or through other reasonable means. Such amendment will come into
effect within one (1) month after the notification is given. Within
fourteen (14) days after receiving this notification, Customer needs to
inform Unica ICT Solution if Customer does not agree to such amendment. Should
Customer not agree to the amendment, the use of the specific Software
and/or Service(s) affected by the amendment will end no later than fourteen
(14) days after the notification has been received by Unica ICT Solution. The
amendment will then not apply to the particular Customer. By continuing to
access, use or receive any of the affected Software or Services, one (1)
month after Unica ICT Solution notified Customer in the manner described above,
Customer consents to the amended Terms.
3. Software:
3.1 Upon receipt by Customer of and in agreement with the Order
Confirmation, Unica ICT Solution grants to Customer a limited, non-exclusive,
non-transferable, non-sub licensable license to access and use the Software
for the number of Authorized Users.
3.2 Unica ICT Solution will retain sole and exclusive ownership of all right,
title and interest in and to the Software and all copies thereof,
including any modifications, enhancements, new versions or derivatives.
In addition, Unica ICT Solution owns all rights and title to any deliverables provided
to Customer in connection with the Software or the Services and grants
Customer a license to use and copy such deliverables solely in connection
with its use of the Software and the Services.
3.3 Unica ICT Solution undertakes that the Software will work in accordance with the
Order Confirmation, the Documentation and these Terms.
3.4 Except for the warranties expressly given in these Terms and in the
Order Confirmation, the Software licenses are provided “as is” without any
further warranties as to the quality of the substance or the manufacture
thereof. Unica ICT Solution disclaims (a) any warranty that the Software (i) shall be
merchantable, (ii) is fit for any particular purpose, or (iii) does not
infringe the intellectual property rights of third parties; (b) any other
warranties with respect to the Software, express or implied, except as
expressly stated in the Order Confirmation; and (c) any warranties in
respect of the formulation, composition, use or distribution of the
Software or in respect of the marketing or sale of the Software to third
parties.
3.5 Notwithstanding the foregoing, Unica ICT Solution:
(a) does not warrant that Customer's use of the Software will be
uninterrupted or error-free; nor that the Software, Services, Documentation
and/or the information obtained by Customer through the Services will meet
Customer's requirements;
(b) is not responsible for the malfunctioning of third party software, such
as Microsoft Dynamics.
3.6 The following additional terms apply to Customer’s use of, or access
to, the Software:
(a) the licenses granted herein are personal and specific to an Authorized
User and no person or entity other than a particular Authorized User will
access or use the Software without the prior written consent of Unica ICT Solution;
(b) Customer may change the Authorized User only by replacing Authorized
Users who are no longer employed by Customer or whose job function has
changed and no longer needs to use the Software;
(c) except as otherwise provided herein, Customer agrees to immediately
notify Unica ICT Solution of any unauthorized use of Customer’s account or any other
breach of security known to Customer.
(d) it shall maintain a written, up to date list of current Authorized
Users and provide such list to Unica ICT Solution within 3 Business Days upon the
written request of Unica ICT Solution;
3.7 If Customer needs additional Authorized User subscriptions, it can
notify Unica ICT Solution thereof and Unica ICT Solution will grant such additional Authorized
Users access to the Software in accordance with the initial Order
Confirmation and these Terms.
3.8 Customer shall use the Software for the purpose for which it was
designed by Unica ICT Solution and may not use the Software:
(a) in a way prohibited by law, regulation, governmental order or decree;
(b) to violate the rights of others;
(c) to try to gain unauthorized access to or disrupt any service, device,
data, account or network;
(d) to spam or distribute malware;
(e) in a way that could harm the Software or impair anyone else’s use of
it; or
(f) in any application or situation where failure of the Software could
lead to the death or serious bodily injury of any person or severe physical
or environmental damage.
3.9 Customer is solely responsible for maintaining the confidentiality of
any non-public authentication credentials associated with its use of the
Software and/or the Services. Customer must promptly notify Unica ICT Solution about
any possible misuse of user accounts of Unica ICT Solution or authentication
credentials or any security incident related to the Software.
3.10 Unless approved by Unica ICT Solution, Customer must comply and may not work
around any technical limitations in the Software that only allows the
Customer to use it in certain ways.
4. Service
4.1 Service provided by Unica ICT Solution will be agreed upon in an Order
Confirmation and will be subject to agreements contained in the Order
Confirmation and in these Terms.
4.2 Unica ICT Solution makes reasonable efforts and performs its duties and
obligations with appropriate care, in a professional and ethical manner and
in accordance with the Order Confirmation. Unica ICT Solution shall be entitled to
engage subcontractors, for any part of the Services, as it may deem
necessary or desirable.
4.3 Unica ICT Solution shall not be required to commence performance of the Services
before receipt of the agreed (number of) materials, data and other
information. In case of delay in delivery, Unica ICT Solution shall be entitled to
postpone the delivery date by the duration of such delay or to such later
date as necessitated by Unica ICT Solution’s planning capabilities.
4.4 Customer shall:
(a) promptly and fully respond to all communications of Unica ICT Solution
relating to the provision of the Services and liaise with Unica ICT Solution on
matters relevant to the provision of the Services;
(b) provide Unica ICT Solution such access to Customer’s information, records and
other materials as Unica ICT Solution may require in connection with or to provide
the Services;
(c) assume responsibility for complying with all laws and regulations
in connection with the Services
; and
(d) provide to Unica ICT Solution all co-operation in all matters required for the
performance of Unica ICT Solution’s obligations under the Order Confirmation.
4.5 Unica ICT Solution warrants that, on the date of provision of the Service, and for
a period of at least 30 days after each such delivery, the Services shall:
(a) be in accordance with the Order Confirmation;
and
(b) be
provided in a professional and workmanlike manner.
4.6 Complaints about the Services shall be made in writing and must be
received by Unica ICT Solution not later than 5 working days from the date of
delivery in respect of any defect, non-conformity or shortage that
would be apparent from a quick scan inspection, or 30 days after the
date of delivery in respect of all other defects or non-conformities to
the Order Confirmation.
4.7 Except to the extent required for testing purposes, the use or
processing of Service shall be deemed to be an unconditional acceptance of
the Services and a waiver of all claims in respect of such Services. If no
notice of defects or non-conformity to the Specifications has been received
by Unica ICT Solution within 14 days, the Services shall be deemed to be accepted by
Customer.
4.8 A defect or non-conformity in parts of the Services does not entitle
Customer to reject the delivery of the Services entirely.
4.9 Upon receipt of a notice of defect or non-conformity, Unica ICT Solution is
entitled to suspend subsequent deliveries until the complaints are
established to be unfounded or refuted or until the defect or
non-conformity has been remedied adequately. Such notice, if any, shall not
affect Customer’s obligation to pay the invoice for the Services timely.
5. Service: pricing and invoicing
5.1 Unica ICT Solution shall provide Customer with an invoice for the
Services in accordance with the agreements in the Order Confirmation plus
all reasonable out-of-pocket expenses incurred by Unica ICT Solution in relation to
the Services.
5.2 Customer shall furthermore reimburse Unica ICT Solution for all costs incurred as
a result of Customer’s (lack of) instructions or the inaccuracy of any
materials, data and other information provided by Customer.
6. Payment and pricing
6.1 Customer shall pay each invoice with regard to Software and/or Services
within 30 days after the invoice date if Customer chooses to pay upon
receipt of invoice. Customer may also choose to authorize Unica ICT Solution to
collect accrued amounts under the Order Confirmation and these Terms
through the ongoing SEPA Debt Authorization (Companies) (doorlopende SEPA incassomachtiging (bedrijven)).
6.2 If Unica ICT Solution has not received payment within 30 days after the due date:
(a) Unica ICT Solution may, without liability to Customer, disable Customer’s account
and access to all or part of the Software and/or the Services and Unica ICT Solution
shall be under no obligation to provide any or all of the Software or
Services while the invoice(s) concerned remain unpaid; and
(b) The amounts then due and payable shall be increased by the higher of
the statutory commercial interest (wettelijke handelsrente) over
the period from the date of invoice to the date of payment in full, without
prior notice being required. In addition, all amounts due by Customer to
Unica ICT Solution for any reason, shall become payable at once. Unica ICT Solution shall be
entitled to charge Customer for administrative costs relating to
non-payment, with a minimum of 125.00 EUR.
6.3 In case of non-payment by Customer it shall be directly in default (in verzuim) without Unica ICT Solution having to send Customer a notice of
default (ingebrekestelling).
6.4 Costs such as administrative costs and extrajudicial (collection)costs
(buitengerechtelijke kosten) incurred by Unica ICT Solution for the exercise
and maintenance of its rights under the Order Confirmation and these Terms
shall be borne by Customer.
6.5 Customer shall not be entitled to assert any credit, set-off or
counterclaim against Unica ICT Solution in order to justify withholding payment of any
amounts due under the Order Confirmation and the Terms (whether in whole or
in part).
6.6 Yearly on January 1, Unica ICT Solution shall be entitled to increase the
Subscription Fees, the fees payable in respect of the additional Authorized
Users subscriptions and fees for Services which increase will be notified
by Unica ICT Solution on its website at the latest on December 1.
7. Change of Software or Services
Unica ICT Solution continuously works to improve its Software and Services and may
change them at any time without notice to Customer. From time to time
Unica ICT Solution may stop providing portions of the Software or the Service, for
example, in case it is no longer feasible or practical for Unica ICT Solution to
provide the Software or the Service, the technology changes, customer
feedback indicates a change is needed, Unica ICT Solution’s agreements with third
parties no longer permits Unica ICT Solution to make their material available or
external issues arise that make it imprudent or impractical to continue to
provide the Software or the Services.
8. Customer data
8.1 Customer is solely responsible for the content of all Customer Data.
Customer will secure and maintain all rights in Customer Data necessary for
Unica ICT Solution to provide use of the Software and/or the Services to Customer
without violating Customer’s policies or the rights of any third party.
Customer shall own all rights, title and interest in and to all of Customer
Data and shall have sole responsibility for the legality, reliability,
integrity, accuracy and quality of Customer Data.
8.2 Unica ICT Solution is commited to helping protect the security of Customer Data
and Unica ICT Solution will strive to keep the Software up and running. It is however
Customer’s responsibility to regularly backup Customer Data to prevent loss
caused by occasional disruptions and outages of Software. Unica ICT Solution is not
liable for any disruption or loss Customer may suffer.
9. Third party providers
Customer acknowledges that the Software and/or Services may enable or
assist it to access the website content of, correspond with, and purchase
products and services from third parties and that it does so solely at its
own risk. Unica ICT Solution makes no representation or commitment and shall have no
liability or obligation whatsoever in relation to any transaction completed
and any agreement or contract between Customer and any such third party.
Any agreement with a third party, a contract entered into and any
transaction completed with any third party is between Customer and the
relevant third party, and not Unica ICT Solution. Unica ICT Solution recommends that Customer
refers to the third party’s terms and conditions and privacy policy prior
to entering into any transaction, contract or agreement with such third
party. Unica ICT Solution does not endorse or approve any third party website nor the
content of any of the third party website made available via the Software
and/or Services.
10. Unica ICT Solution's rights and obligations
10.1 Unica ICT Solution is not responsible for any non-conformance of the Software
and/or the Services which is caused by use of the Software and/or the
Services contrary to the instructions of Unica ICT Solution or modifications or
alterations of the Software and/or the Services by any party other than
Unica ICT Solution or Unica ICT Solution's duly authorized contractors or agents.
10.2 The Order Confirmation and these Terms shall not prevent Unica ICT Solution from
entering into similar agreements with third parties, or from independently
developing, using, selling or licensing documentation, products and/or
services which are similar to those provided under the Order Confirmation.
10.3 Unica ICT Solution warrants that it has and will maintain all necessary licences,
certificates, consents, and permissions necessary for the performance of
its obligations under the Order Confirmation and the Terms.
10.4 During Normal Business Hours and at any time during which the Software
is being used by Customer or its Authorized Users, Unica ICT Solution or its
authorized representatives shall have the right upon advance notice of at
least 3 days to audit and inspect Customers’ utilization of the Software,
for the sole purpose of verifying compliance with the terms of the Order
Confirmation, the Terms and Unica ICT Solution’s list of Authorized Users. All audits
will be conducted in a manner that does not interfere with Customer’s
business activities. Unica ICT Solution will be responsible for all costs and expenses
incurred by it or its representatives in the course of such audit or
inspection. If verification or self-audit reveals any unlicensed use,
Customer will have to promptly order sufficient Licenses and pay for
additional Authorized Users to cover Customer’s past and present use. If
unlicensed use is found, Customer will have to reimburse Unica ICT Solution for costs
it incurs in verification and Customer will need to acquire all necessary
additional Licenses at retail license cost within 14 days.
11. Customer’s obligations
11.1 Customer shall:
(a) provide Unica ICT Solution with all necessary cooperation in relation to the Order
Confirmation and the Terms;
(b) comply with all applicable laws and regulations with respect to its
activities under the Order Confirmation and the Terms;
(c) carry out all other Customer responsibilities deriving from the Order
Confirmation and the Terms in a timely and efficient manner. In the event
of any delays in Customer's provision of such assistance as agreed by
Parties, Unica ICT Solution may adjust any agreed timetable or delivery schedule as
reasonably necessary;
(d) ensure that its network and systems comply with the relevant
specifications provided by Unica ICT Solution from time to time; and
11.2 Customer shall not access, store, distribute or transmit any Viruses
or any material during the course of its use of the Software and/or
Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing,
harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief,
sexual orientation, disability, or any other illegal activity; or
(f) causes damage or injury to any person or property.
11.3 Customer shall not:
(a) attempt to copy, modify, duplicate, create derivative works from,
frame, mirror, republish, download, display, transmit, or distribute all or
any portion of the Software and/or Documentation (as applicable) in any
form or media or by any means; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise
reduce to human-perceivable form all or any part of the Software; or
(c) access all or any part of the Software, Services and Documentation in
order to build a product or service which competes with the Software,
Services and/or the Documentation; or
(d) subject to clause 18.2, license, sell, rent, lease, transfer, assign,
distribute, display, disclose, or otherwise commercially exploit, or
otherwise make the Software, the Services and/or Documentation available to
any third party except the Authorized Users; or
(e) attempt to obtain, or assist third parties in obtaining, access to the
Software, Services or Documentation, other than as provided under this
clause.
11.4 Customer shall use all reasonable endeavours to prevent any
unauthorised access to, or use of, the Software, Services and/or the
Documentation and, in the event of any such unauthorised access or use,
promptly notify Unica ICT Solution.
11.5 Unica ICT Solution reserves the right, without liability to Customer, to disable
Customer’s access to any material that breaches the provisions of this
clause.
12. Term and termination
12.1 The agreement between Parties as laid down in the Order
Confirmation shall, unless otherwise terminated as provided in this
clause, commence on the Effective Date and shall continue for the
Initial Subscription Term and, thereafter, this agreement shall be
automatically renewed for successive periods of 12 months, unless:
(a) either Party notifies the other party of termination, in writing, at
least 60 days before the end of the Initial Subscription Term or any
Renewal Period, in which case the agreement between Parties shall terminate
upon the expiry of the applicable Initial Subscription Term or Renewal
Period; or
(b) otherwise terminated in accordance with the provisions of these Terms;
12.2 Without prejudice to any other rights or remedies to which the Parties
may be entitled, either Party may terminate the agreement laid down in the
Order Confirmation with the other Party without liability to the other if:
(a) the other Party commits a material breach of any of the terms of the
Order Confirmation or these Terms and (if such a breach is remediable)
fails to remedy that breach within 30 days of that Party being notified in
writing of the breach; or
(b) an order is made or a resolution is passed for the winding up of the
other Party, or circumstances arise which entitle a court of competent
jurisdiction to make a winding-up order in relation to the other Party; or
(c) a receiver is appointed of any of the other Party's assets or
undertaking, or if circumstances arise which entitle a court of competent
jurisdiction or a creditor to appoint a receiver or manager of the other
Party, or if any other person takes possession of or sells the other
Party's assets; or
(d) the other Party makes any arrangement or composition with its
creditors, or makes an application to a court of competent jurisdiction for
the protection of its creditors in any way; or
(e) the other Party ceases, or threatens to cease, to trade; or
(f) the other Party takes or suffers any similar or analogous action in any
jurisdiction in consequence of debt.
12.3 On termination of the agreement laid down in the Order Confirmation
for any reason:
(a) all licences granted under the Order Confirmation shall immediately
terminate;
(b) each Party shall make no further use of any software, equipment,
property, Documentation and other items (and all copies of them) belonging
to the other Party;
(c) if the agreement laid down in the Order Confirmation is terminated
Unica ICT Solution will delete Customer Data or will otherwise disable Customer’s
access to such Customer Data. Unica ICT Solution is under no obligation to notify
Customer or return Customer Data to Customer.
(d) the accrued rights of the Parties as at termination, or the
continuation after termination of any provision expressly stated to survive
or implicitly surviving termination, shall not be affected or prejudiced.
12.4 Customer may cancel the agreement laid down in the Order Confirmation
at any time during the Free Trial Term. A cancellation will be effective at
the conclusion of the Free Trial Term.
12.5 In case Customer violates the Order Confirmation and the Terms, is
ineligible to enter into it, or Unica ICT Solution suspects fraud, Unica ICT Solution may:
(a) remove Customer Data from its Software or Services and/or disable the
access of Customer to such Customer Data;
(b) suspend or cancel Customer’s access to the Software or the Services;
(c) refer such activity to appropriate authorities;
(d) pursue its remedies under applicable law; or
(e) take any combination of these actions.
Customer Data that is deleted may be irretrievable.
13. Intellectual property
13.1 Customer acknowledges and agrees that Unica ICT Solution and/or its licensors own
all intellectual property rights in the Software, the Services and the
Documentation. Except as expressly stated herein, the Order Confirmation
does not grant Customer any rights to, or in, patents, copyrights, database
rights, trade secrets, trade names, trade marks (whether registered or
unregistered), or any other rights or licences in respect of the Services
or the Documentation.
13.2 Unica ICT Solution confirms that it has all the rights in relation to the
Software, the Services and the Documentation that are necessary to grant
all the rights it purports to grant under, and in accordance with, the
terms of the Order Confirmation.
14. Indemnification
14.1 Customer shall defend, indemnify and hold harmless Unica ICT Solution against
claims, actions, proceedings, losses, damages, expenses and costs
(including without limitation court costs and reasonable legal fees)
arising out of or in connection with Customer's use of the Software, the
Services and/or Documentation, provided that:
(a) Customer is given prompt notice of any such claim;
(b) Unica ICT Solution provides reasonable co-operation to Customer in the defence and
settlement of such claim, at Customer's expense; and
(c) Customer is given sole authority to defend or settle the claim.
14.2 Unica ICT Solution shall defend Customer, its officers, directors and employees
against any claim that the Software, the Services or Documentation
infringes any patent, copyright, trade secret or any other proprietary
right of any third party, and shall indemnify Customer for any amounts
awarded against Customer in judgment or settlement of such claims, provided
that:
(a) Unica ICT Solution is given prompt notice of any such claim;
(b) Customer provides reasonable co-operation to Unica ICT Solution in the defence and
settlement of such claim, at the Unica ICT Solution's expense; and
(c) Unica ICT Solution is given sole authority to defend or settle the claim.
14.3 In the defence or settlement of any claim, Unica ICT Solution may procure the
right for Customer to continue using the Software, the Services and/or the
Documentation, replace or modify those so that they become non-infringing
or, if such remedies are not reasonably available, terminate the agreement
laid down in the Order Confirmation on 2 Business Days notice to Customer
without any additional liability or obligation to pay liquidated damages or
other additional costs to Customer.
14.4 In no event shall Unica ICT Solution, its employees, agents and sub-contractors
be liable to Customer to the extent that the alleged infringement is based
on:
(a) a modification of the Software, the Services or Documentation by anyone
other than Unica ICT Solution; or
(b) Customer's use of the Software, the Services or Documentation in a
manner contrary to the instructions given to Customer by Unica ICT Solution; or
(c) Customer's use of the Software, Services or Documentation after notice
of the alleged or actual infringement from the Supplier or any appropriate
authority.
14.5 The foregoing states Customer's sole and exclusive rights and
remedies, and Unica ICT Solution's (including the Unica ICT Solution’s employees', agents'
and sub-contractors’) entire obligations and liability, for
infringement of any patent, copyright, trade mark, database right or
right of confidentiality.
15. Limitation of liability
If Unica ICT Solution breaches the Order Confirmation or these Terms or if Customer
has any basis for recovering damages despite the limitations in the Order
Confirmation and the Terms, Customer agrees that its exclusive remedy is to
recover from Unica ICT Solution direct damages up to the amount paid out under the
Unica ICT Solution’s liability insurance policy in the matter concerned, and if no
payment from the insurance policy can be received, liability of Unica ICT Solution is
limited up to EUR 5000.00, with an limitation period of 1 year to recover
damages. To the extend permitted by applicable law, whatever the legal
basis for the claim, Customer cannot recover any other damages or losses,
including, without limitation consequential, lost profits, special,
indirect, incidental or punitive damages. These limitations and exclusions
apply even if this remedy does not fully compensate you for any losses or
fails of its essential purpose or if Unica ICT Solution knew or should have known
about the possiblitiy of the damages. To the maximum extent permitted by
law, these limitations and exclusions apply to anything related to the
Order Confirmation and the Terms such as: (i) loss of Customer Data; (ii)
any Virus affection; (iii) delays or failures in starting or completing
transmissions or transactions; (iv) claims for breach of contract,
warranty, guarantee or condition; (v) strict liability, negligence,
misrepresentation, omission, trespass, or other tort; (vi) violation of
regulation.
16. Force majeure
Unica ICT Solution shall have no liability to Customer under the Order Confirmation if
it is prevented from or delayed in performing its obligations under any
Order Confirmation, or from carrying on its business, by acts, events,
omissions or accidents beyond its reasonable control, including, without
limitation, strikes, lock-outs or other industrial disputes (whether
involving the workforce of Unica ICT Solution or any other party), failure of a
utility service or transport or telecommunications network, act of God,
war, riot, civil commotion, malicious damage, compliance with any law or
governmental order, rule, regulation or direction, accident, breakdown of
plant or machinery, fire, flood, storm or default of suppliers or
sub-contractors, provided that Customer is notified of such an event and
its expected duration.
17. Confidentiality
17.1 Each party (“Receiving Party”) acknowledges that the other party’s
(“Disclosing Party”) Confidential Information constitutes valuable
trade secrets and the Receiving Party agrees that it shall use the
Disclosing Party’s Confidential Information solely in accordance with
the provisions of the Order Confirmation and these Terms and will not
disclose, or permit to be disclosed, the same, directly or indirectly,
to any third party without the Disclosing Party's prior written
consent. The Receiving Party agrees to use the same efforts, but not
less than commercially reasonable efforts, to protect the Disclosing
Party’s Confidential Information from unauthorized use and disclosure
as the Receiving Party takes with respect to its own similar
confidential information. The Receiving Party may disclose the
Disclosing Party’s Confidential Information if required to be disclosed
by order of a court or other governmental entity, provided that the
Receiving Party promptly notifies the Disclosing Party and assists the
Disclosing Party in resisting or limiting such disclosure.
Each party shall hold the other's Confidential Information in confidence
and, unless required by law, not make the other's Confidential Information
available to any third party, or use the other's Confidential Information
for any purpose other than the implementation of the Order Confirmation.
17.2 Each party shall take all reasonable steps to ensure that the other's
Confidential Information to which it has access is not disclosed or
distributed by its employees or agents in violation of the terms of the
Order Confirmation or these Terms.
17.3 Neither party shall be responsible for any loss, destruction,
alteration or disclosure of Confidential Information caused by any third
party.
17.4 Customer acknowledges that details of the Software, the Services,
the Documentation and the results of any performance tests of the
Software and the Services, constitute the Unica ICT Solution's Confidential
Information.
17.5 Unica ICT Solution acknowledges that Customer Data is the Confidential
Information of Customer.
17.6 Any infringement by Customer of its obligations under this clause will
entitle Unica ICT Solution to claim payment of a EUR 5000.00 lump sum, without
prejudice to Unica ICT Solution’s right to claim higher damages if Unica ICT Solution can prove
the existence of such higher damages.
17.7 Unica ICT Solution may list Customer's name in Unica ICT Solution's materials and may
otherwise inform third parties that Customer is a customer that uses the
Software and/or Services.
18. Miscellaneous
18.1 Any waiver, amendment or modification of the Order Confirmation will
be effective only if made in writing and signed by the Parties. No failure
or delay by either Party in exercising any right, power or remedy with
respect to any of its rights hereunder shall operate as a waiver thereof in
the future.
18.2 Customer may not assign the Order Confirmation and accompanying
Terms or transfer any rights to use the Software and/or the Services.
18.3 Unica ICT Solution may at any time assign, transfer, charge, sub-contract or deal
in any other manner with all or any of its rights or obligations under the
Order Confirmation and the accompanying Terms, without notice to Customer.
18.4 If any provision in the Order Confirmation or these Terms is found to
be invalid or unenforceable in any respect in any jurisdiction:
a. the validity or enforceability of such provision shall not in any way be
affected in respect of any other jurisdiction and the validity and
enforceability of the remaining provisions shall not be affected, unless
the Order Confirmation and accompanying Terms reasonably fail in their
essential purpose; and
b. the Parties shall substitute such provision by a valid and enforceable
provision approximating to the greatest extent possible the essential
purpose of the invalid or unenforceable provision.
18.5 The Order Confirmation and these Terms do not confer any rights on any
person or party other than the Parties.
18.6 Unica ICT Solution may provide Customer with information and notices about the
Software, the Services and/or the Documentation electronically, including
via email, through the portal of the Software and/or the Services or
through a web site that Unica ICT Solution identifies. Notice is given as of the date
it is made available by Unica ICT Solution. Customer’s access and use of the Software
and/or Services operates as Customer’s consent to these practices.
18.7 This clause 18 and clauses 17, 15 and 14 will survive any termination
or cancellation of the agreement laid down in the Order Confirmation.
19. Governing law and jurisdiction
19.1 The Order Confirmation and these Terms are governed by the laws of the
Netherlands.
19.2 Any disputes arising out of or in connection with the Order
Confirmation or these shall exclusively be referred to the competent courts
of Amsterdam, The Netherlands.
Amsterdam, June 2020