WIZATA PLATFORM – TERMS OF USE
 

1.   License. WIZATA grants to Customer, and Customer accepts, a nonexclusive, non-transferrable and non-sub-licensable license to use the software offered by WIZATA under the product name “Wizata Platform” (formerly referred as the “Wizata Platform”) as described to in the Offer and as configured by WIZATA (the “Program”) and any operational and/or complementary software the Customer may order under this Agreement and decide to use optionally with the Program (the “Optional Materials”), as listed and detailed on the Offer (the “License”). The Program does not incorporate stand-alone modules or subsystems that Customer has developed without WIZATA’s consent, not modifications made by any other person than WIZATA without WIZATA’s consent.

 

2.   Term. This Agreement will start on for an initial period. After the “Initial Term”, the Agreement will be automatically renewed for successive periods. Customer may terminate this Agreement in whole or as to any Program or Optional Materials with prior written notice to WIZATA. WIZATA may terminate or discontinue this Agreement anytime if Customer fails to comply with the terms of this Agreement or as provided in clauses 11 and 18.

If License with respect to the Program terminates, the license for all related Optional Materials will also terminate.

3.   Charges.

 

a)  Amount and Payment.

Monthly charges payable for the License

. Monthly charges will start after installation by WIZATA of the Program and/or Optional Materials to Customer’s Authorized Site, and are payable. Charges for part of a month will be prorated. In case of delay in the installation of the Program and/or, where applicable, of the Optional Materials, due to Customer’s negligence and/or fault or omission (including any delay in the implementation by the Customer itself of any software or hardware required to install the Program), the monthly charges will remain fully due and payable in the conditions described above.

 

b)  Change. Upon expiry of the Initial Term, WIZATA may change the monthly charge(s) to Customer by notifying such changes to the Customer. The change of such monthly charges is deemed accepted by the Customer if Customer does not object.

 

c)   Taxes. Customer will pay all taxes, including VAT, if applicable, levied or based on this Agreement, the charges payable under it, on the Program and Optional Materials, or on their use. Any such taxes payable by WIZATA (other than (i) taxes based on WIZATA's income or (ii) personal property taxes assessed against the Program or Optional Materials) may be added to the monthly charges due under this Agreement.

 

4.   Use Specifications. Customer should only use the Program and the Optional Materials for the purpose of the optimization of their processes. Customer shall always be liable for its use of the Program and the Optional Materials. Any misuse, unauthorized modification or erroneous exploitation or interpretation of the results originated by the Program and/or the Optional Materials shall be borne by the Customer and WIZATA shall never be held responsible for any misuse, unauthorized modification or erroneous exploitation or interpretation of the results originated by the Program and/or the Optional Materials by the Customer. WIZATA shall only be responsible for the recommendations formulated by the Program, and the Customer shall exclusively be responsible for the interpretation and the validation of such recommendations and their practical and technical implementation. WIZATA cannot be held liable for any damage caused due to an error or fault (other than in case of gross negligence or willful misconduct) by any employee(s) of a Party.

 

5.   Maintenance and upgrades.

 

a)  Maintenance on, and upgrades, to the Program shall exclusively be carried out by WIZATA. Should the Customer have modified and/or altered the Program in its use of it without the written prior consent of WIZATA, either by negligence or on purpose, the Customer is informed that it will remain fully responsible for the additional costs that such modifications/alterations may lead to in the maintenance and upgrading of the Program carried out by WIZATA.

 

b)  Suspension of Maintenance. If any charge owing by the Customer is overdue from payment due date as provided under clause 3. a) and has not been paid by the Customer within period of payment reminder notice from WIZATA then, WIZATA may, without limiting its other rights and remedies, suspend the maintenance until such amounts are paid in full.

 

6.   Additional Licenses. Customer may request additional licenses for previously licensed Program or Optional Materials or for additional Program or Optional Materials. Customer's request must contain a reference to this Agreement. Such licenses are effective only after acceptance by WIZATA and are subject to the terms of this Agreement.

 

7.   Optional Materials. Any Optional Materials offered by WIZATA are available to Customer only if Customer has a right to sub-license such Optional Materials.

 

8.   Installation.

 

a)  The Customer shall assume full responsibility for the procurement, maintenance, overall effectiveness, and efficiency of the hardware and operating environments upon which the Program and/or the Optional Materials are to function. The Customer acknowledges in that respect that the installation of the Program requires the Customer to have considerable IT storage capabilities available through a cloud solution (Microsoft Azure or other).

 

(i).                 the Wizata Platform is deployed on a Microsoft Azure subscription managed solely by WIZATA.

 

(ii).                The Customer allows WIZATA to create a subscription for the Customer in its tenant with Microsoft Azure.

 

(iii).               Notwithstanding the obligation of the Customer to monitor its consumption, the subscription shall be managed and paid by WIZATA. Such costs shall be reimbursed by the Customer to WIZATA.

 

(iv).              The Customer commits not to interfere in any way with this subscription even though it would have that technical capability to do so.

 

(v).                The Customer shall be fully liable, without any limitation, and indemnify WIZATA for any damage or additional costs due to the violation by the Customer of such contractual obligation.

 

b)  Provided that the Customer has put in place the hardware and operating environment required in order for the Program to be installed and to be used, the Program will be installed by WIZATA, after confirmation of Customer's order. WIZATA shall never bear any liability in case the installation of the Program is delayed due to Customer’s negligence and/or fault and/or omission (including any delay in the implementation by the Customer itself of any software and/or hardware required to install the Program).

 

9.   Programming Service and Additional Charges. WIZATA may charge Customer for all additional costs and charges resulting from additional work in connection with any programming services resulting from Customer's unauthorized modifications of the Program. WIZATA may further charge Customer for providing services to ensure maintenance, support and automatic or forced update of the Program.

 

10.    Design and Specification Announcements.

 

a)  Design Objectives. WIZATA will publish design objectives and estimate dates of availability for Program. WIZATA does not, however, represent or warrant that such design objectives or dates of availability will be met.

 

b)  Specifications and Descriptions. WIZATA will publish:

 

(i).               Product use specifications (the “Program Use Specifications”) for the Program classified in programming service classification A or B; or 

 

(ii).              A functional description for the Program classified in programming classification C as the program is included in WIZATA's Program Use Specifications.

 

11.    Intellectual Property.

 

a)        Definitions. For the purpose of this clause 11, the terms below shall have the following meaning:

 

(i).               “Developments” means any development or modification to the Program, made by WIZATA, either when necessary, or, where applicable, at the Customer’s request.

 

(ii).              “Documentation” refers to the explanatory electronic and/or paper documents and notes, in any language, describing the use of the Program or Developments as supplied by WIZATA or as made available to the Customer. Documentation also refers to the Program Use Specifications and any other additional information periodically made available by WIZATA to the Customer.

 

(iii).             “Enhancements” means any improvement added to the functionality of the Program or Developments as part of maintenance.

 

(iv).            “Intellectual Property Rights” means all current and future copyrights, patents, trademarks (whether or not registered), or rights in databases, inventions, or trade secrets, know-how, processes, rights in designs, topographies, trade and business names, domain names, and all other intellectual property rights and applications for any of those rights (where such applications can be made) capable of protection in any relevant jurisdiction.

 

(v).              “Program Fix(es)” mean(s) a coding change to the Program or any part of it in order to fix a non-conformity in the Program functioning. 

 

b)        The Customer recognizes and agrees that the Intellectual Property Rights on the Program, all portions, reproductions, Program Fixes, Developments, Enhancements, and modifications, or any other material thereof provided to the Customer, are (i) the exclusive intellectual property of WIZATA and (ii) are to be considered by the Customer as strictly confidential and (iii) are provided to the Customer in the utmost confidence.

 

c)         Except as expressly permitted hereunder, WIZATA prohibits the copying of any portions of the Program. The original, and any copies of the Program, or any part thereof, are the exclusive property of WIZATA. Any data input from the Customer shall not affect in any way the exclusive property of WIZATA on all its Intellectual Property Rights.

 

d)       The Customer will not attempt nor permit anyone else to attempt to modify, copy for distribution, reverse engineer, reverse compile, or disassemble the code of the Program.

 

e)       The Customer agrees to reproduce and include WIZATA’s trademarks, copyrights, and other proprietary notices on all copies, in whole or in part, in any form, of the Program.

 

 

12.    Non-Disclosure.

 

a)       For the purposes of the Agreement, confidential information shall include but not be limited to the Program, including all specifications, any documents including but not limited to the terms and conditions of the Agreement, all information concerning either party’s technical operations including, without limitation, computer systems, equipment, and facilities, and WIZATA’s and the Customer’s financial, business, and commercial information or data regarding the WIZATA’s and/or the Customer’s clients and/or contacts (the “Confidential Information”). Confidential Information shall not include information that is or comes in to the public domain or is independently created or obtained by a party other than where such resulted from a disclosure by a third party in breach of confidentiality obligations.

 

b)       Each Party agrees that it shall not sell, transfer, publish, disclose, display, or otherwise make available to third parties the Confidential Information of the other without prior written consent of the other. Each Party agrees to secure and protect Confidential Information and to take appropriate action by written agreement with its employees, agents, and/or subcontractors with permitted access to such Confidential Information to satisfy its obligations hereunder.

 

c)       Each Party further agrees that it shall promptly notify the other as soon as it becomes aware of any breach of confidentiality obligations pursuant to an Agreement and give the other all reasonable assistance in connection with investigation of the same. Each Party shall use its best efforts to assist the other in identifying and preventing any unauthorised use or disclosure of any portion of Confidential Information. Neither Party shall disclose any Confidential Information of the other to any third party unless it has (a) obtained the prior written consent of that Party (which, in the case of disclosure to professional advisers, including third party software maintainers or developers, shall not be unreasonably withheld or delayed), and (b) provided that the third party has executed a confidentiality and non-disclosure agreement directly with the other Party. For the avoidance of doubt consent may be withheld if disclosures to a third party would constitute a breach of a legal obligation.

 

d)       Obligations and undertakings relating to confidentiality and non-disclosure, whether contained in this clause or elsewhere in the Agreement, shall survive termination of the Agreement.

 

e)       The Customer shall permit WIZATA’s authorised representatives to audit Customer's use of the Program to determine that the provisions of an Agreement are being faithfully performed. WIZATA shall inform the Customer thereof prior to the commencement of such audit. Such audit shall be carried out by an independent third party, which shall be bound by a non-disclosure agreement. The Parties agree that access will be strictly limited to relevant information. The Customer agrees to provide reasonable assistance and access to information and any audit shall not unreasonably interfere with the Customer’s normal business operations. WIZATA shall bear the costs associated with such audit. The Customer agrees to pay any additional fees applicable to its use of the Program in excess of the License rights granted. The Customer shall not be obliged to grant access to information protected by professional secrecy, or Confidential Information, or other information, which could lead to a breach by the Customer of a legal obligation. 

 

13.    Limited Access. Customer will not make any Program or Optional Materials available to any person, other than Customer's employees and WIZATA's representatives and employees, without WIZATA's prior written and specific consent

 

14.     Customer's Employee(s) Responsibilities. Customer will take all necessary and appropriate action with respect to Customer's employees, and all other persons to whom Customer grants access to Program or Optional Materials, to ensure compliance with Customer's obligations under this Agreement regarding the use, copying, alteration, protection, and/or security of Program and Optional Materials.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

 

15.    Warranty. Program in service classification A or B will conform to WIZATA's published program product specifications on installation to Customer. WIZATA will provide sample data with such Program to assure Customer that Customer has received a valid copy. Program in service classification C are provided "as is," without warranty.

THE WARRANTY STATED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

No warranty by WIZATA shall apply if the alleged breach has been caused by any unauthorized amendment to the Program.

16.    Limitation of Liability.

 

a)        Amount. WIZATA's liability for damages with respect to this Agreement and the License provided, except for liability for Intellectual Property Rights infringement, will not exceed the charges paid by Customer for the Program or Operational Materials that are the subject of any claim.

 

b)        Limitation of Liability in relation to Intellectual Property Rights infringements.

 

(i).               WIZATA shall never be held liable for any infringements to third party’s Intellectual Property Rights due to the use by the Customer of Optional Materials in connection with the Program, in all or in portions, reproductions, Program Fixes, Developments, Enhancements, and modifications, and/or other complementary tools and/or software used in connection to, plugged and/or merged with the Program in all or in portions, reproductions, Program Fixes, Developments, Enhancements, and modifications.

(ii).              WIZATA shall not bear any responsibility in case any of the Optional Materials infringes third party’s Intellectual Property Rights.

(iii).             Nothing in the Agreement and in particular within this “Limitation of Liability” clause, shall exclude or limit liability for infringement by the Customer of the Intellectual Property Rights of WIZATA.

c)         Type. WIZATA in no event will be liable for:

 

(i).               Indirect damages;

 

(ii).              Lost profits or for other special damages; or

 

(iii).             Any claim against Customer by any third party other than a claim based on Intellectual Property Right infringement by WIZATA in relation to the Program to third party Intellectual Party Rights.

 

d)        Limitations Period. No action arising under this Agreement may be brought by either party after the cause of action accrued, except for an action for nonpayment of charges that may be brought after the date of the last payment.

 

e)           Microsoft Azure Cloud or other cloud solution consumption. For the avoidance of a doubt, any unanticipated consumption and/or overconsumption by the Customer of the Microsoft Azure Cloud (as further defined and described under the Offer) or any other cloud solution necessary to run the Program, shall be at the sole cost of the Customer which is responsible for monitoring such consumption.

 

17.    Modification of Agreement.

 

a)        WIZATA's Right to Modify. WIZATA may modify the terms of this Agreement, except for provisions relating to discontinuances of License, as set out in clauses 11 and 18, and to charges, as provided in clause 3.

 

b)        Customer's Right to Terminate. If WIZATA modifies the Agreement, Customer may terminate this Agreement or discontinue the License provided under it. Absent such termination, WIZATA's modification of this Agreement will be effective on the date provided in clause 17.a).

 

18.    Termination of License. WIZATA may terminate this Agreement or discontinue the License on written notice to Customer (a) if Customer fails to comply with any of the terms of this Agreement or (b) if the continuation of the Agreement makes impossible to WIZATA to stop an infringement to any third party Intellectual Property Rights due to the use of the Program, or (c) in case of a direct or indirect change of control in the shareholding of the Customer. If the License is discontinued, this Agreement shall not terminate unless WIZATA specifically provides notice of termination.

 

19.    Destruction on Discontinuance. Owner is hereby authorized by the Customer to delete, respectively destroy, the original and, if any, all copies (including partial copies and parts incorporated into other Program) in any form, of the Program and Optional Materials from the Customers servers.

 

20.    No Assignments. This Agreement and the Program and Optional Materials may not be assigned, sublicensed, or transferred in any way by Customer, without WIZATA's prior written consent.

 

21.    Miscellaneous.

 

a)        Exclusive Agreement. This Agreement is the complete and exclusive agreement between the Parties in relation to the License, and supersedes all other communications between the Parties with respect to the License. This Agreement also takes precedence over the terms of any Customer order for any licenses passed before the date of this Agreement.

 

b)        Saving Clause. If any provision of this Agreement is invalid under any applicable statute or rule of law, such provision is deemed omitted, and the balance of this Agreement shall remain binding on the Parties.

 

c)         Customer's Remedies. Customer's remedies, as provided in this Agreement, are exclusive.

 

d)        Governing Law and Competent courts. This Agreement is governed by the laws of Luxembourg. The Parties consent to the exclusive jurisdiction and venue in the competent Luxembourg courts for all disputes connected to this Agreement.