1. SECTION 1: PREAMBLE
This contract with the terms of membership defines the commitment that Datanau and the user establish for the use of the Datanau Online Services and Software. The use of these online and local solutions implies the acceptance and application of the general conditions of use set out below.
This contract or legal act (“Contract”) is entered into between the Customer and Datanau and consists of these General Terms, the applicable Rights of Use and the technical clarification of the contract, and any additional terms that Datanau presents when an order is placed, being an instrument of legal certainty aligned with good market practice, considering the ISO-IEC 20000-1, information technology service management system standard.
This Agreement comes into force when the Customer decides to use Datanau services and software. The natural person who accepts the following terms on behalf of a legal person, by so accepting, declares that person has sufficient powers of representation to enter into this Agreement on behalf of that legal person.
a) “Administrator Data” refers to the information provided to Datanau during the registration, acquisition, or administration of the Products.
b) “Confidential Information” is defined in the “Confidentiality” section.
c) “Customer” means the entity identified as such in the account associated with this Agreement.
d) “Customer Data” refers to all data, including all text, sound, software, image, or video files, provided to Datanau or its Affiliates by the Customer and its Affiliated Companies, or on behalf of them, through the use of Online Services.
e) “End User” means any person authorized by the Customer to use a Product or access Customer Data.
f) “Non-Datanau Product” means any third-party data, software, services, websites, or products, unless incorporated by Datanau into a Product.
g) “Online Services” means services hosted by Datanau subscribed to by the Customer under this Agreement. It does not include Software and services provided under different licensing terms.
h) “Online Services Terms” means the additional terms that apply to the Customer’s use of Online Services, updated periodically.
i) “Partner” means a company authorized by Datanau to distribute Products to the Customer.
j) “Personal Data” means any information relating to an identified or identifiable individual.
k) “Product” means all Software and Online Services identified in the Product Terms that Datanau offers under this Agreement, including pre-release versions, pre-commercial release versions, updates, patches, and error fixes from Datanau. Product availability may vary by region.
l) “Manufacturer” means a supplier of a Non-Datanau Product.
m) “Representative” means an employee, Affiliated Company, contractor, agent, or consultant of either party.
n) “Software” means licensed copies of Datanau Software identified in the Product Terms. The Software does not include Online Services, but the Software may be included in an Online Service.
o) “Use” means to copy, transfer, install, execute, access, display, utilize, or interact with in any other way.
p) “Usage Rights” means the licensing terms and service terms for each Product. The Usage Rights prevail over the terms of any end-user license agreement that accompanies a Product.
2.1. CONSIDERATIONS FOR GENERAL TERMS FOR CORPORATE CUSTOMERS:
These General Terms apply to all Customer orders under this Agreement.
2.2. LICENSE TO USE DATANAU PRODUCTS/SERVICES:
A. License Grant:
The products are licensed, not sold. Upon Datanau’s acceptance of each order and subject to the Customer’s compliance with this Agreement, the Customer is granted a non-exclusive and limited license to use the ordered Products as stipulated in the Usage Rights provided in this Agreement. These licenses are for the Customer’s internal business use only and are not transferable, except as expressly permitted by this Agreement or applicable law.
B. Duration of Licenses:
Licenses granted expire at the end of the applicable subscription period according to the contracted service plan, unless renewed. Licenses granted for Products with limited use and subject to periodic billing/limited time or usage-based usage plan continue as long as the Customer continues to pay for the respective Product usage. All other licenses, not subject to these criteria, become perpetual upon full payment of their price.
C. Usage Rights:
For subscriptions, the Usage Rights in effect at the start of each subscription period shall apply. Customers with Software subscriptions may use new versions during the subscription period under the then-current Usage Rights when those versions are released. For Products with limited and usage-based billing/limited time usage, billed periodically based on usage, the Usage Rights in effect at the start of each billing period shall apply during that period.
Datanau may update the Usage Rights periodically, but materially adverse changes to a particular version shall not apply during the applicable license, subscription, or billing period.
Customer will control access to and use of the Product by End Users to whom it chooses to assign, for which Customer is responsible for any use of the Products that is not in accordance with this Agreement.
E. Affiliated Companies:
You may order Products for use by your Affiliated Companies. If so, the licenses granted to Customer under this Agreement will apply to such Affiliated Companies, but Customer shall have the exclusive right to enforce this Agreement from Datanau. Customer shall be responsible for all obligations under this Agreement and for the performance thereof by its Affiliated Companies.
F. Reservation of Rights:
Datanau reserves all rights not expressly granted in this Agreement. The Products are protected by copyright laws and by the legal regime of intellectual property and international treaties. No rights shall be granted or deemed to be granted implicitly as a result of any waiver. The rights to access or use a Product on a device do not confer on the Customer any rights to implement Datanau patents or other Datanau intellectual property on the device itself or on any other software.
Except as expressly permitted by this Agreement or Product documentation, Customer may not (and is not licensed to):
I. reverse engineer, decompile or “disassemble” any Product or any attempt to do so;
II. install or use non-Datanau Software or technology in a manner that may subject Datanau’s intellectual property or technology to other licensing terms;
III. work around any technical limitations in a Product or restrictions in the Product documentation;
IV. separate and run parts of a Product on more than one device;
V. upgrade or change to a previous version parts of a Product at different times;
VI. transfer parts of a separate Product; or
VII. distribute, sublicense, rent, lease or lend any Product, in whole or in part, or use it to offer services related to the functions of the Datanau applications to third parties.
H. Licence transfers:
Customer may only transfer fully paid licenses under this Agreement to:
I. An Affiliated Company, or;
II. Third parties, only in connection with the transfer of hardware or employees to whom licenses have been assigned as part of:
a) a divestiture of all or part of an Affiliated Company, or;
b) a merger involving the Client or an Affiliated Company.
Upon such a transfer, you must uninstall and discontinue use of the licensed Product and render any copies unusable. The Customer shall notify Datanau of the transfer of a license and provide the transferee with a copy of these General Terms, the applicable Rights of Use and any other documents necessary to show the scope, purpose and limitations of the transferred licenses. Nothing in this Agreement prohibits the transfer of the Software, to the extent permitted by applicable law, if the right of distribution has been exhausted.
3. SECTION 3: VERIFICATION OF COMPLIANCE
Customer shall keep records relating to the Products that Customer and its Affiliates use or distribute. Datanau may, at its own expense, verify the compliance of the Customer and its Affiliates with this Agreement at any time, provided that it communicates its intention by means of notice sent 30 calendar days in advance. To this end, Datanau may engage an independent auditor (under non-disclosure and professional secrecy obligations) or ask the Client to conduct and demonstrate a self-audit process.
The Customer shall promptly provide such information and documents as are reasonably requested by Datanau or the auditor regarding verification and access to the systems running the Products. If verification or self-auditing reveals any unlicensed use, you must order, within 30 days, a sufficient number of licenses to cover the period of your unlicensed use.
Without limiting other remedies to Datanau, if the unlicensed use is 5% or more of Customer’s total use of all Products, Customer shall reimburse Datanau for its costs incurred in verifying compliance and purchase licenses sufficient to cover its unlicensed use at 125% of Customer’s current price or the maximum permitted under applicable law, if it is lower. All information and reports related to the verification process will be considered Confidential Information and used solely to verify compliance.
4. SECTION 4: PROTECTION OF PERSONAL DATA AND PRIVACY
a) Personal Data: The Customer consents to the processing of Personal Data by Datanau and its affiliates and their agents and data processors as described in this Agreement. Before providing Personal Data of third parties and their agents to Datanau, the Customer undertakes to frame the processing of personal data, of which it is a faithful depositary, on the appropriate grounds of lawfulness under Community Law of the European Union and national law, assuming responsibility in this regard (including the contacts, Partners, distributors, administrators and employees of the Client, for example) under the applicable data protection legal regime.
b) Retention of Personal Data: To the maximum extent permitted by applicable law, Personal Data necessary for the performance of this Agreement may be transferred, stored and processed in the geographical territories where Datanau or its Affiliates or their agents and data processors have facilities. In this sense, Datanau will comply with the requirements of the Community legal regime of the European Union and national law on data protection, with regard to the collection, use, transfer, retention and other processing of Personal Data in the European Economic Area and Switzerland.
c) Specific information, terms and conditions on the protection of personal data: Precise and specific information on the protection of personal data involved in the use of Datanau products is available in the document “Data protection Terms and Conditions“. This document establishes the obligations regarding the processing and security of the processing of Personal Data related to Datanau Services and Products, being incorporated by reference into these General Product Terms, clarifying the responsibilities for guaranteeing the rights and freedoms of the holders.
a) Confidential Information: is non-public information that is identified as being “confidential” including, but not limited to, Customer’s personal data, business data, the terms of this Agreement, and Customer’s account authentication credentials.
Confidential Information does not include information that:
I. become publicly available without a breach of an obligation of confidentiality;
II. have been lawfully received by the receiving party from another source, without an obligation of confidentiality;
III. are developed independently; or
IV. a suggestion or comment submitted on a voluntary basis about the other party’s business, products or services.
b) Protection of Confidential Information: Each party will take reasonable steps to protect the other’s Confidential Information and use it only for purposes related to the business relationship of the same parties.
Neither party will disclose such Confidential Information to any third party except its Representatives, and only in the event of a “need to know” subject to non-disclosure (confidentiality) obligations equivalent to those included in this Agreement. Each party remains responsible for the use of the Confidential Information by its Representatives and, if any unauthorized use or disclosure is discovered, it must immediately notify the other.
c) Disclosure required by legal obligation: One party may disclose the other’s Confidential Information if required by virtue of a legal obligation. However, the parties undertake to do so only after prior notice to the other party (if legally permitted) to ensure that the other party has the capacity and time for an injunction.
d) Residual Information: Neither party is under an obligation to restrict the future professional activity of its respective Representatives who have had access to the Confidential Information. Each party agrees that the use of the information retained without memory aids by the Representatives in the development or implementation of the parties’ respective products or services does not entail liability under this Agreement or trade secret law and each party agrees to limit what is disclosed to the other party accordingly.
e) Duration of the Confidentiality Obligation: These obligations apply to:
I. to Customer Data until deleted from the Online Services;
II. to all other Confidential Information, for a period of from the receipt of the Confidential Information by either party.
5. SECTION 5: PRODUCT GUARANTEES
a) Limited warranties and remedies:
I. Online Services: Datanau warrants that each Online Service will operate in accordance with the technical clarification of the applicable contract during use by the Customer.
II. Software: Datanau warrants that the version of the Software that is current at that time will perform substantially for one year from the date Customer acquires a license for that version. If this does not occur, and if the Customer notifies Datanau during the term of the license/subscription of use, at its option, Datanau may:
a. return the price paid by the Customer for the Software license, or;
b. repair/resolve the inconvenience or replace the Software.
The above remedies are the only remedies to the Customer for breach of the warranties granted in this section. The Customer waives any claims not submitted during the term of the subscription.
b) Exclusions: The warranties of this Agreement do not apply to problems caused by accident, misuse or use contrary to the stipulations of this Agreement, including non-compliance with the minimum system requirements. These warranties do not apply to free products, trial products, pre-release products, commercial pre-release products, or components of the Products that you are authorized to redistribute.
c) Disclaimer: Except for the limited warranties above and subject to applicable law, Datanau makes no other warranties or conditions for the Products and excludes any other implied or statutory warranties for the Products, including warranties of quality, title, non-infringement of intellectual property rights, merchantability and fitness for a particular purpose.
6. SECTION 6: DEFENSE OF LEGAL CLAIMS BROUGHT BY THIRD PARTIES
The parties undertake to defend and indemnify each other against legal actions brought by third parties described in this section and shall pay the amount resulting from any final adverse court decision or agreed settlement, however, only if the party bound by the defense or judicial process is promptly notified in writing of the legal action and has the right to transact and the right to ample defense and adversarial law independently assured, in respect of any resulting transaction. The Party included in the mutual defence shall provide the Party responsible for defence with all necessary assistance, information, conditions and authorisations for that purpose. The defending party shall reimburse the other party for any current expenses incurred in providing the assistance.
This section describes the exclusive remedies and total liability of the parties for such legal claims:
a) By Datanau: Datanau will defend the Customer against any legal action brought by a third party to the extent that it is alleged that a Product made available by Datanau for consideration and used within the scope of the license granted under this Agreement (without changes in the format provided by Datanau and not combined with any other element) infringes a trade secret or directly infringes a patent, copyright, a trademark or other proprietary right of a third party. If Datanau is unable to bring an end to the legal action for abuse of trust or infringement of intellectual property rights, it may, at its discretion:
I. modify or replace the Product with a functional equivalent, or;
II. terminate Customer’s license and reimburse any licensing fees (less depreciation for perpetual licenses), including amounts paid in advance for unused consumption for any period of use after the date of termination. Datanau shall not be liable for any legal claims or damages due to the Customer’s continued use of a Product after the Customer has been notified to suspend such use due to an action brought by a third party.
b) By Customer: To the maximum extent permitted by applicable law, Customer will defend Datanau and its Affiliates against any legal action brought by third parties, to the extent that it is alleged that:
I. any Customer Data or Non-Datanau Product hosted on an Online Service by Datanau on Customer’s behalf discloses a trade secret or directly infringes a patent, copyright, trademark or other proprietary right of a third party, or;
II. the use of any Product by the Customer, alone or in conjunction with any other element, violates the Rights or harms third parties.
7. SECTION 7: LIMITATION OF LIABILITY
For each Product, each Party’s maximum aggregate liability to the other under this Agreement is limited to the direct damages suffered, in an amount that shall not exceed the amounts Customer has had to pay for the Products during the term of the applicable licenses/subscriptions, subject to the following:
a) Subscriptions: For Products ordered by subscription, Datanau’s maximum liability to the Customer for any incident giving rise to a claim shall not exceed the amount paid by the Customer for the Product during the 12 months prior to the incident.
b) Free Products and distributable code: For the Products provided free of charge and the code that the Customer is authorized to redistribute to third parties without separate payment to Datanau, Datanau’s total liability is limited to the terms of law applicable at the time of the incident, within the limits of its sphere of influence, and is not responsible for the misuse of users.
c) Exclusions: In no event shall the parties be liable for indirect, , special, punitive or consequential damages, or for loss of use, lost profits or interruption of activity, regardless of the cause or nature of the type of liability in question.
d) Exceptions: No limitation or exclusion shall apply to the liability of either party arising out of:
I. confidentiality obligations: (except for liability related to Customer Data, which will remain subject to the above limitations and exclusions);
II. obligations to defend and indemnify legal actions brought by third parties or
III. infringement of the other party’s intellectual property rights.
8. SECTION 8: PARTNERS
a) Select a Partner: You may authorize a Partner to place orders and manage purchases on your behalf by associating the Partner with your account. If the Partner’s right to distribute is terminated, the Customer must choose an authorized replacement Partner or purchase directly from Datanau. The partners and other third parties are not agents of Datanau and are not authorized to enter into any contract with the Customer on behalf of Datanau.
b) Partner Administrator Privileges and Access to Customer Data: If Customer purchases Services from a Partner or chooses to provide a Partner with administrator privilege, that Partner will be the primary administrator of the Services and will have administrative privileges and access to Customer Data and Administrator Data. Customer authorizes Datanau and its Affiliates to provide Partner with Customer Data and Administrator Data for the purposes of provisioning, administering and supporting (as applicable) the Services. The Partner may process such data in accordance with the terms of the Partner’s contract with the Customer and its commitments to the protection of personal data and confidentiality, which may differ from those of Datanau. The Customer designates the Partner as its agent for the purposes of providing and receiving notices and other communications to and from Datanau. Customer may terminate the Partner’s administrative privileges at any time.
c) Technical and Professional Support Services: Customer’s Partner will provide details of the support services available for the Products purchased under this Agreement. Technical support services may be provided by the Partner or its representative, which in some cases may be Datanau. If you purchase Professional Services under this agreement, the performance of those Professional Services will be subject to the terms and conditions set forth in the Rights of Use.
9. SECTION 9: PRICES AND PAYMENT
If the Customer orders from a Partner, the Partner will set the Customer’s prices and payment terms for that order, which will pay the amount owed to the Partner. The prices and payment terms related to the orders placed by the Customer directly with Datanau are defined by Datanau, and the Customer will pay the amount owed, as described in this section.
a) Payment method: The Customer must indicate a payment method or, if eligible, choose to be billed for purchases made in their account. By providing Datanau with a payment method, the Customer:
I. authorizes Datanau’s use of account information in relation to the selected payment method provided by the issuing bank or applicable payment network;
II. you represent that you are authorized to use that payment method and that any payment information you provide is true and accurate;
III. declares that the payment method has been established and is used primarily for commercial purposes and not for personal, family or household use, and;
IV. authorizes Datanau to charge the Customer using the payment method for orders under this Agreement.
b) Invoices: Datanau may invoice eligible Customers. The Customer’s ability to opt for payment by invoice is subject to Datanau’s approval of the Customer’s financial condition. The Customer authorizes Datanau to obtain information about its financial condition, which may include credit reports, to assess the Customer’s eligibility for billing. Unless the Client’s financial statements are publicly available, the Client may be required to provide the balance sheet, profit and loss, and treasury statements to Datanau. The Customer may be required to provide reasonable guarantees to Datanau to be eligible for billing. Datanau may withdraw the Customer’s eligibility at any time and for any reason. You must immediately notify Datanau of any changes to your company name or location and of any significant changes in the ownership, structure or operational activities of the organization.
c) Invoice payment terms: Each invoice will identify the amounts owed by the Customer to Datanau for the period corresponding to the invoice. The Customer shall pay all outstanding amounts within thirty (30) calendar days after the invoice date.
d) Late Payment: Datanau may, at its option, charge default interest for any payments that have fallen due more than fifteen (15) calendar days, at a rate of two percent (2%) of the total amount payable, calculated and payable monthly, or the maximum amount permitted by law, if less.
e) Cancellation fee: If a subscription allows for an early termination and you cancel the subscription before the end of the subscription or billing period, you may be charged a cancellation fee.
f) Periodic Payments: For subscriptions with automatic renewal, Customer authorizes Datanau to charge Customer payment method periodically for each subscription or billing period until the subscription ends. By authorizing periodic payments, Customer authorizes Datanau to process such payments by electronic debits or funds transfers or as electronic drafts of the designated bank account (in the case of Automated Clearing House or similar debits), as charges to the designated card account (in case of credit card or similar payments) (collectively, “Electronic Payments”). If any payment is returned as unpaid or if any credit card or similar transaction is rejected or declined, Datanau or its service provider reserves the right to charge an applicable fee per returned item, rejection or insufficient funds, to the maximum extent permitted by applicable law, and to process any such fees as an Electronic Payment or to invoice the amount owed to the Customer.
g) Taxes and Charges: . If any amounts are intended to be paid to Datanau, Customer shall also pay all applicable taxes on value added, goods and services, sales, gross receipts or other transaction taxes, fees, charges or surcharges, or any recovery cost surcharges provided for by law or similar amounts due under this Agreement and which Datanau is permitted to charge to Customer. Customer shall be responsible for any applicable stamp duty and for any taxes it is legally required to pay, including those related to the distribution or supply of the Products by Customer or its Affiliated Companies. Datanau will be responsible for all taxes based on net income, gross income taxes required instead of taxes on income or profits and taxes related to the respective property.
If the withholding of any taxes relating to payments invoiced by Datanau is mandatory, the Customer may deduct them in question from the amount due and pay them to the responsible tax authority, but only if the Customer immediately provides Datanau with an official proof of such withholding and other necessary documents justifiably requested to enable Datanau to claim a tax credit for international double taxation or a refund. The Customer will ensure that any withheld taxes are minimized, to the extent possible under applicable law.
10. SECTION 10: TERM AND TERMINATION
a) Term: This Agreement will remain in effect until terminated by either party, as described below.
b) Termination without justification: Either party may terminate this Agreement, without justification, by giving notice to the other party received 60 days prior to the date of termination. Termination without cause will not affect Customer’s perpetual licenses and the licenses granted on each subscription will continue for the duration of the subscription period under the terms of this Agreement.
c) Termination with justification: Without limiting any other remedies that may exist, either party may terminate this Agreement through a notice addressed to the other party, received 30 days in advance in case of breach of contract, as well as if the other party fails to remedy the default situation within 30 days. After termination, the following shall apply:
I. All licenses granted under this Agreement shall immediately terminate except for fully paid perpetual licenses;
II. Any outstanding amounts from unpaid invoices will be considered immediately due and payable. For Products with limited traffic billed periodically based on usage, the Customer must immediately pay for unpaid usage on the date of termination.
III. In the event of Datanau’s default, the Customer will receive a credit for any subscription fee, including the amounts paid in advance for unused consumption for a period of use after the date of termination.
d) Suspension: Datanau may suspend the use of an Online Service without ceasing this Agreement during a period of material breach. Datanau will notify the Customer before suspending an Online Service, if reasonable.
e) Termination for regulatory reasons: Datanau may modify, discontinue or terminate a Product in any jurisdiction where there is a regulatory cause, current or future governmental obligation or other requirement that:
I. is not generally applicable to the commercial transaction in that jurisdiction;
II. presents an impediment for Datanau to continue to offer the Product without modification;
III. cause Datanau to consider that these terms or the Product conflict with any regulatory provision, obligation or requirement. In the event of termination by Datanau of a subscription for regulatory reasons, the Customer will receive, as exclusive compensation, a credit for any subscription fee, including the amounts paid for unused consumption for any period of use after the date of termination.
11. SECTION 11: GENERAL PROVISIONS
a) Independent contractors: The parties are independent contractors. The Customer and Datanau may develop products independently, without using the Confidential Information of the other party.
b) Non-exclusive agreement: The Customer is free to enter into agreements for the licensing, use and promotion of third-party products and services.
c) Amendments: Datanau may modify this Agreement from time to time. Changes to the Rights of Use as set forth in this Agreement will apply. No changes will be applied to other terms until they are accepted by the Customer. Datanau may require the Customer to accept the additional or revised terms before placing a new order. Any additional conflicting terms and conditions contained in the purchase order or other element submitted by the Customer are expressly rejected and will not apply.
d) Assignment of Contractual Position: Each party may assign its contractual position in this Agreement to an Affiliated Company, but must notify the other party in writing of the assignment. The Client authorizes the assignment to an Affiliated Company or third party, without prior notice, of any rights Datanau may have under this Agreement to receive payments and enforce the Client’s payment obligations and all assignees may assign such rights without further consent. Any other assignment of rights under this Agreement must be approved by the non-assigning party in writing. The assignment will not release the assigning party from its obligations under the assigned Agreement. Any attempted assignment without the necessary approval will be considered null and void.
e) Independent Clauses: If any part of this Agreement is found to be unenforceable, the remaining provisions of the Agreement shall remain in full force and effect.
f) Waiver: Failure to comply with any provision of this Agreement shall not constitute a waiver. Any waiver must be made in writing and signed by the waiving party.
g) No third-party beneficiaries: This Agreement does not create any rights or obligations for third parties except as expressly provided by these terms.
h) Term after termination of the Agreement: All provisions will continue in effect after termination of this Agreement, except those requiring performance only during the term of the Agreement.
i) Notifications: Notifications must be made in writing and will be deemed received on the date of receipt at the address, the date shown on the acknowledgement of receipt, on the date of transmission of e-mail or on the date of confirmation of delivery of fax or express courier service. Notifications to Datanau should be sent to the following address:
Dom Afonso Henriques Street, 1613 R/C, 4820-090 Fafe, Portugal.
Notifications to you will be sent to the address identified by you in your account as the contact for the notifications. Datanau may send notifications and other information to the Customer by email or another electronic format.
j) Applicable Law: This Agreement shall be governed by and construed in accordance with Portuguese legal order and European Union Community law. The 1980 United Nations Convention on Contracts for the International Sale of Goods and related instruments shall not apply to this Agreement.
k) Dispute Resolution: By bringing any legal action arising out of this Agreement, the parties accept the following exclusive venues:
I. If Datanau initiates legal action, the jurisdiction shall be the place where the Customer has its respective headquarters.
II. If the Customer initiates legal action against Datanau, the jurisdiction shall be where Datanau has its respective headquarters.
The parties agree to the jurisdiction of the agreed-upon forum. This forum selection does not prevent either party from seeking injunctive relief in any jurisdiction concerning a breach of intellectual property rights or confidentiality obligations.
l) Order of precedence: These General Terms prevail over any other conflicting terms in other documents that form part of this Agreement, except that the conflicting terms in the Rights of Use prevail over these General Terms with respect to the applicable Products. The terms of the Online Services prevail over any other conflicting terms in the Product Terms. The terms of an amendment prevail over the amended document and any previous amendments with respect to the same matter.
m) Datanau Contractors: Datanau may perform its obligations under this Agreement through contractors to provide certain services. Datanau is responsible for its performance.
n) Provisioning rules for governance: By accepting this Agreement, the Customer represents and warrants that:
I. has complied and will comply with all applicable government procurement laws and regulations;
II. is authorized to conclude this Contract;
III. this Agreement satisfies all applicable procurement requirements.
ANNEX I - INDIVIDUAL USER SUPPLEMENTAL PURCHASE TERMS
For individual users, the following additional terms also apply:
12. SECTION 12: DEFINITIONS APPLICABLE TO THESE INDIVIDUAL USER SUPPLEMENTAL TERMS OF PURCHASE
a) “Customer” means the entity or individual identified as such in the account associated with this Agreement.
b) “Individual Customer User” means an Individual User who subscribes to or orders Products that use an authentication identity (such as an email address) provided by the Individual User’s organization.
c) “Individual User” means any individual person (other than an Administrator) who subscribes to the Online Services for use by a member or members of the subscriber’s organization and, if these Online Services require payment of a fee, provide a payment method for which the Individual User is personally responsible.
13. SECTION 13: CHANGES TO THE GENERAL AGREEMENT APPLICABLE TO THE INDIVIDUAL USER
A) The paragraph entitled “Affiliated Companies” in the “License to use Datanau Products” section of this Agreement does not apply to Individual Users.
B) The paragraph “Transfer of License” in the section “License to use Datanau Products” is replaced by the following:
“For Individual User purchases, Customer may not assign this Agreement, in whole or in part, or transfer licenses without Datanau’s consent, except in the case of a control assumed by the Administrator, as permitted in this Agreement”.
C) The paragraphs below are added to the section “License to use Datanau Products”:
“Rights of the Individual User and the Customer. The following applies to purchases made by the Individual User: To the extent that the Individual User is acting on behalf of their organization. The organization is the Customer and owns all rights and licenses to the Products that the Individual User is acquiring hereunder, and the Individual User’s access to and rights thereto are granted to the Individual User in his or her capacity as an end user in this organization. In this case, if there is another agreement in place with Datanau under which the same organization maintains active subscriptions to the Online Services (a “Prior Agreement”), the terms of that Prior Agreement will also govern Customer’s use of and rights in the Online Services, and control over any conflicting terms in the Agreement, but these Supplemental Terms will continue to apply to the Individual User”.
D) The “Privacy” section is replaced as follows:
“The privacy of the Individual User is important to Datanau. Read Datanau’s data protection policy, as it describes the responsibilities, guarantees to the rights and freedoms of data subjects, the implications and how the controller (Datanau) uses this Data and frames the grounds of lawfulness that justify for this purpose.
F) The first paragraph of the “Prices and Payment” section is replaced as follows:
“For the purchases of the Individual User, the prices and payment terms of a given order are defined by Datanau and the Individual User will pay the amount owed to Datanau. In such event, the Individual User shall remain solely responsible for the timely payment of all amounts owed to Datanau under the Products ordered by the Individual User under this Agreement until the termination of the Agreement.”
G) The paragraphs “Independent Contractors”, “Non-exclusive Agreement” and “Assignment of Contractual Position” included in the “General Provisions” section do not apply to Individual Users.
H) The paragraph “Amendments” included in the section “General Provisions” is replaced as follows:
“Datanau may modify this Agreement from time to time upon notice to the Customer. Changes to the Rights of Use as set forth in this Agreement will apply. Other changes will be deemed accepted if the Customer continues to purchase or consume Datanau and/or non-Datanau Products.
Datanau may require the Customer to accept the additional or revised terms before placing a new order. Any additional conflicting terms and conditions contained in the purchase order or other element submitted by the Customer are expressly rejected and will not apply.”
I) The paragraph below is added to the “Independent clauses” paragraph of the “General Provisions” section”:
“For Individual User purchases, the “Binding Arbitration and Class Claim Waiver” clause below describes what happens if portions of this “Binding Arbitration and Class Claim Waiver” clause are found to be illegal or unenforceable. The “Binding Arbitration and Class Claim Waiver” clause prevails over this section if it is inconsistent with it”.
J) The paragraph “No third-party beneficiaries” in the “General Provisions” section is replaced as follows:
“For Individual User purchases, with the exception of the “Binding Arbitration and Class Claim Waiver” clause below, this Agreement does not create any rights or obligations for any third party except as expressly provided by its terms.”
K) The “Dispute Resolution” paragraph of the “General Provisions” section is replaced as follows:
“The Client and Datanau agree to attempt to resolve any dispute informally, for 60 days”.
Disputes covered – everything except the IP. The term “litigation” is as broad as it gets. It includes any legal action or controversy between the Customer and Datanau regarding the Product, its price, advertising, marketing, communications, the purchase transaction, billing or this Agreement, within the scope of any theory of law, including contract, warranty, tort, statute or regulation, except disputes relating to the application or validity of the Customer’s intellectual property rights, Customer’s licensors, Datanau’s licensors or Datanau’s licensors.
14. SECTION 14: AUTHORIZATION TO USE THE CLIENT DOMAIN AND RECOGNITION OF SHARED DIRECTORY DATA
For the purchases of the individual user customer, the individual user customer:
I. declares that he has the authority to use the domain of that organization to subscribe to a subscription or order Products in his capacity as a member of that organization; and
II. acknowledges that it will be included in a directory of users sharing the same domain and that the data in that directory (name, registration date and email address) may be visible to other users of the Online Services in the same organization’s domain. All terms of the Agreement applicable to the Customer (as amended and supplemented by these Individual User Terms of Purchase) shall also apply to the Individual User Customer.
15. SECTION 15: ASSIGNMENT AND ASSUMPTION OF RIGHTS AND RESPONSIBILITIES
I. For Individual Customer User purchases, the organization within which the Online Services are used, as the owner of the domain associated with the authentication identity used for the purchase, may take control of and manage the use of the Online Services by the Individual Customer User.
In this case, the organization’s designated administrator (the “Administrator”) may
(i) control and administer the Individual Customer User’s account, including modifying and terminating the Individual Customer User’s access, and
(ii) access and process the data of the Individual Client User, including the content of the communications and files of the Individual Client User. For other purchases of the Individual User, the Administrator has the rights described in (i) and (ii) above from the time of purchase.
II. For any Individual User purchase, the Administrator may assume responsibility for future subscription renewal fees or fees. In this case, the Individual User must cancel the original subscription before the next renewal to avoid incurring future payment obligations in respect of this subscription.
III. Effective upon any assumption of control or responsibility by the Administrator over the Online Services, the subscription or the associated fees, the Individual User hereby assigns to this Customer organization all of its rights, title and interest, if any, in the Products resulting from this Agreement. Datanau may inform the Individual User that the Customer’s organization has taken control of the Online Services covered by the Individual User’s subscription or responsibility for the associated payment obligations, but Datanau is under no obligation to provide such notice.
IV. Data Subject Requests: Except where the Administrator has taken control over the account, Individual Customer Users should address data subject requests and privacy information directly to Datanau. For other Individual Users, since the organization is managing the account associated with the Individual User’s subscription and administering the use of the Online Services, the Individual User should direct data subject requests and data protection information to the respective Administrator.