Table of content
This Master Subscription Agreement is entered into between Code Capsules Holding Limited, a company incorporated in Mauritius with registration number 185223 and with its head office at Office 2, Level 4, ICONEBENE, Lot B441, Rue de L’Institut, Ebene, Mauritius (“Company”) and the Customer (as defined below).
2.1. THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CUSTOMER’S USE OF THE SERVICES AND, TO THE EXTENT SET OUT HEREIN, CUSTOMER’S USE OF ANY BETA SERVICE, FREE TRIAL OR THIRD PARTY PRODUCT.
2.2. BY CLICKING A BOX INDICATING CUSTOMER’S ACCEPTANCE OF THE SERVICES OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ANY TERMS ON THE ORDER FORM, AS IF AN ORIGINAL PARTY HERETO.
2.3. IF CUSTOMER REGISTERS FOR BETA SERVICES OR A FREE TRIAL, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ANY TERMS ON THE ORDER FORM, AS IF AN ORIGINAL PARTY HERETO.
2.4. AN AFFILIATE OF CUSTOMER MAY RECEIVE SERVICES UNDER THIS AGREEMENT, PROVIDED THAT SUCH AFFILIATE ENTERS INTO AN ORDER FORM. RECEIPT OF SERVICES BY CUSTOMER’S AFFILIATE IS SUBJECT TO CUSTOMER REMAINING RESPONSIBLE FOR SUCH AFFILIATE’S PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT.
In this Agreement, the following terms (as capitalised), shall have the meanings assigned below:
3.1. Account means a unique account created for a Customer to access a Service.
3.2. Affiliate means an entity that controls, is controlled by or is under common control with a party, where “control” means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.
3.3. Agreement means this Master Subscription Agreement and any annexures thereto, the Special Conditions, and all Order Forms that incorporate the terms and conditions of this Master Subscription Agreement.
3.4. Application Data means any data that forms part of a Customer Application as set out in clause 13.3.1.
3.5. Beta Services means services or functionality that may be made available to Customer to try at its option at no additional charge and which is designated as beta, pilot, limited release, developer preview, non-production, evaluation, or designated by a similar description.
3.6. Capsule is a connection to a code repository that contains a Customer Application and hosts it on a server.
3.7. CodeCaps’ DPA means Company’s data protection agreement that is incorporated into this Agreement by reference.
3.8. Code Capsules Marketplace means an online directory, catalog or marketplace of applications and APIs that interoperate with the Services, made available by Company.
3.9. Competitor means any person or entity that provides products or services that in Company’s discretion are considered to compete with, or are alternatives to, the Company’s Services.
3.10. Content means materials, data or information obtained by Company from publicly available sources or a Third Party Licensor and made available to Customer pursuant to an Order Form, or, as more fully described in the Documentation.
3.11. Country means Mauritius.
3.12. Customer means:
(a) the individual accepting this Agreement on his or her own behalf; or
(b) the company or other legal entity on whose behalf the individual is accepting this Agreement; and
(c) an Affiliate of the Customer that entered into an Order Form, subject to clause 2.4.
3.13. Customer Application means any Customer application in a Capsule.
3.14. Customer Data means any electronic data, materials and information submitted by or for Customer, to or in connection with the use of the Platform.
3.15. Data Protection Laws with respect to Company, means the data protection laws of the Country, or the countries set out in the Code Capsules’ DPA; and with respect to Customer, means any international data protection laws applicable to Customer.
3.16. Documentation means any documentation made available on Company’s Website in connection with the use of the Platform.
3.17. Effective Date means the date set out in the Order Form.
3.18. Feedback means feedback, innovations or suggestions sent by Customer regarding the attributes, performance or features of the Platform.
3.19. Force Majeure means circumstances beyond a Party’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem (other than one involving Company employees), pandemic, epidemic, internet service provider failure or delay, or the unavailability of a Third Party Product (but excludes Customer’s failure to pay fees).
3.20. Free Trial refers to a free trial of a service for a limited period.
3.21. Intellectual Property means all intellectual property and similar proprietary rights, howsoever arising in any jurisdiction worldwide, whether registered or not and in whatever form or embodiment, made or discovered solely or in collaboration with others, including (without limitation) patents, inventions, discoveries; industrial designs, design rights, models, topography rights; copyright, moral rights, compilations of data, database schemas, customer lists, records, diagrams, documents, drawings, specifications, schematics, applications, software (including source code and object code); registered and common law trade marks, service marks, trade names, business names, trade dress, domain names, logos, branding goodwill; performer’s rights; plant breeder’s rights; trade secrets, confidential information, know-how, business processes, technical data and specifications, customer and supply lists, pricing and cost information, business and marketing plans and proposals; adaptations, improvements and/or derivatives of the aforegoing; and in respect of all of the aforegoing, any applications (or entitlement to make application) for the protection or registration of the aforesaid rights and all renewals and extensions thereof throughout the world (to the extent possible).
3.22. Malicious Code means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
3.23. Non-Code Capsules Application means a web-based, mobile, offline or other software application functionality that interoperates with a Service, that is provided by a Third Party Licensor and/or made available on the Code Capsules Marketplace. Non-Code Capsules Applications, other than those obtained or provided by Customer, will be identifiable as such.
3.24. Order Form means an ordering document or online order on Company’s online purchasing portal, that is entered into between Customer and Company that, unless expressly stated otherwise in the Order Form, references this Agreement. Any order for usage-based Services that Customer may order on Company’s Platform or Website from time to time is also considered to be an order made in terms of an Order Form and is subject to the terms of this Agreement.
3.25. Party means a party to this Agreement set out in clause 1.
3.26. Permitted Downtime means downtime for planned support and maintenance, unplanned downtime due to emergency support and maintenance, or unavailability or downtime due to Force Majeure.
3.27. Platform means Company’s platform used to deploy container-based code, known as “Code Capsules”.
3.28. Purchased Services means supported Services that Customer or Customer’s Affiliate purchase under an Order Form, as distinguished from any Beta Service, Free Trial or Third Party Product subject to Special Conditions or a Third Party Terms.
3.29. Region means the hosting region selected by the Customer that must correspond with Customer’s physical location, unless more than one Region is selected by Customer. Regions include the following hosting regions:
(c) USA; or
(d) South Africa.
3.30. Service means a product or service ordered by Customer with an Order Form or on Company’s Platform or Website. A “Service” includes a service connection with the Platform, but excludes any Beta Service, Free Trial, Customer Data, Content and Third Party Products subject to Special Conditions or a Third Party Terms.
3.31. SLA means Company’s service level for the provision of support, or if applicable, upgraded support, made available on the Website, from time to time.
3.32. Special Conditions means the Special Conditions set out in Annexure A: Special Conditions.
3.33. Sub-Processor means any of Company’s Affiliates or providers:
(a) used by Company to provide the Services; and
(b) that processes personal information forming part of Customer Data.
3.34. Taxes means any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever.
3.35. Term means:
(a) the contract period set out in an Order Form, or the collective contract periods of all Order Forms, if the Customer executed more than one Order Form; or
(b) the contract period set out in the Third Party Terms of a Third Party Product.
3.36. Third Party Product means any product, software, application, subscription, service or Content made available to Customer by a Third Party Licensor, including a “Non-CodeCaps Application”.
3.37. Third Party Licensor means the owner or licensor of a Third Party Product.
3.38. Third Party Terms means the agreement applicable to any Third Party Product.
3.39. Token means a token that allows Customer to access a particular service, that is valid for a limited period of time, that is either prepaid by Customer, or gifted by a third party to Customer and that is not refundable in cash.
3.40. Uptime means the total availability of the Purchased Services, set out in the relevant SLA. If the Uptime is not specified in an SLA, the Uptime is the total availability of the Purchased Services during a month, calculated on a 24x7x365 basis, less Permitted Downtime and errors caused by Users (such as failure to comply with operating instructions set out in the Documentation).
3.41. User means an individual such as Customer’s employee, consultant, contractor or agent that is authorised by Customer to access the Platform for Customer’s internal business purposes. Company does not authorise the personnel of any Competitor to use the Platform or any Service, unless Company has given its express and prior written consent that the personnel of a Competitor be added as a User.
3.42. Website means Company’s website, at https://codecapsules.io.
4.1. This Agreement shall commence on the Effective Date and endure for the Term, unless terminated earlier as permitted by this Agreement.
4.2. Any Third Party Terms entered into by Customer, constitutes a separate agreement between Customer and the Third Party Licensor. Accordingly, the termination of any such Third Party Terms will not affect the Term of this Agreement.
5.1. Company will make the Purchased Services available to Customer, according to Company’s standard SLA for support (or if applicable, upgraded support).
5.2. Company will use commercially reasonable efforts to make the Purchased Services available for the Uptime set out in the SLA.
5.3. Customer’s sole remedy, and Company’s sole obligation for downtime or errors are to correct the unavailability or errors according to Company’s standard SLA for support (or if applicable, upgraded support).
6.1. Company will make any Beta Service, Free Trial or Non-Code Capsules Application available to Customer according to the Special Conditions in this Agreement, or as applicable, the Third Party Terms.
6.2. If the Parties have agreed on any Special Conditions, each Party agrees to give effect to the Special Conditions that may be applicable to such Party.
7.1.1. Unless otherwise provided in the applicable Order Form, Purchased Services and access to Content are purchased for the Term stated in the applicable Order Form.
7.1.2. Additional Services may be added to the Purchased Services at the then-current pricing for the additional Purchased Services.
7.1.3. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Company regarding future functionality or features.
7.2. Usage Limits
7.2.1. Services and Content are subject to usage limits specified in the applicable Order Forms. If Customer exceeds a contractual usage limit, Company may work with Customer to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding Company’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will pay the invoice for excess usage and execute an Order Form for additional quantities of the applicable Services or Content promptly upon Company’s request.
7.3. User Accounts
7.3.1. When creating an Account, a User must provide information that is accurate, complete, and current at all times. Failure to do so constitutes a material breach of this Agreement that may result in immediate suspension or termination of an Account, if Company does not receive payment within a certain period. If Company cannot verify the Account information, it may immediately suspend the Account and request Customer to provide updated information. If Customer fails to do so, or such updated Account information Company cannot be verified, Company may terminate the Customer’s Account immediately without further notice.
7.3.2. User is responsible for safeguarding the password used to access the Account and for any activities or actions under the password, whether the password is with a Service offered by Company, or a Third Party Licensor, e.g. Apple Keychain or Google password service.
7.3.3. User agrees not to disclose their password to any third party. User must notify Company immediately upon becoming aware of any breach of security or unauthorized access to a User’s Account.
7.3.4. User may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity without appropriate authorization, or a name that is otherwise offensive, vulgar or obscene.
7.4. Suspicious activities
7.4.1. If the Company detects any suspicious or fraudulent activities, Company may immediately suspend the Account, pending the outcome of its internal investigation. If the internal investigation determinates the existence of suspicious or fraudulent activities, Company may terminate the Account immediately without further notice. Suspicious or fraudulent activities may include, but are not limited to: violation of Usage Restrictions; unusual patterns or behaviors associated with an Account; payment fraud or abuse such as using stolen credit cards, or conducting unauthorized financial transactions.
7.5. Usage Restrictions
7.5.1. Unless expressly stated otherwise in an Order Form, Customer may not, in respect of the Platform, a Service, Content or a Third Party Product made available by Company (each a “Licensed Product” and together “Licensed Products”) violate the Restrictions set out below.
7.5.2. Customer may not:
(a) make a Licensed Product available to anyone other than Customer’s Users, or use it for the benefit of anyone other than Customer or its Affiliates;
(b) sell, resell, license, sublicense, distribute, make available, rent or lease any Licensed Product or include any Licensed Product in a service bureau or outsourcing offering;
(c) use a Licensed Product to store or transmit infringing, defamatory, or otherwise unlawful or tortious material, or use a Licensed Product to store or transmit material in violation of third-party privacy rights;
(d) use a Licensed Product to store or transmit Malicious Code;
(e) interfere with or disrupt the integrity or performance of any use a Licensed Product or data contained therein;
(f) attempt to gain unauthorised access to any use a Licensed Product or its related systems or networks;
(g) permit direct or indirect access to or use of any use a Licensed Product in a way that circumvents a contractual usage limit, or use any Services to access or use any of Company Intellectual Property except as permitted under this Agreement or an Order Form;
(h) modify, copy, or create derivative works based on a Licensed Product or any part, feature, function or user interface thereof;
(i) copy Licensed Product or any part thereof, except as expressly permitted herein or in an Order Form;
(j) frame or mirror any part of any Licensed Product, other than framing on Customer’s own intranets or otherwise for its own internal business purposes or as specifically permitted;
(k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Licensed Product or access it to: (i) build a competitive product or service; (ii) build a product or service using similar ideas, features, functions or graphics of the Service; (iii) copy any ideas, features, functions or graphics of a Licensed Product; or (iv) determine whether the a Licensed Product is within the scope of any patent Fees and payment.
7.6. Removal of Content and Non-Code Capsules Applications
7.6.1. If Customer receives notice that Content or a Non-Code Capsules Application must be removed, modified and/or disabled to avoid violating applicable law or third-party rights, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in Company’s judgement continued violation is likely to reoccur, Company may disable the applicable Content, Service and/or Non-Code Capsules Application and may discontinue Customer’s access to Content through the Platform.
8.1. Customer will pay all fees specified in each Order Form. Except as otherwise specified herein or in an Order Form:
(a) fees are based on Services purchased (except for usage-based Services where fees are based on volumes or quantities used);
(b) payment obligations are non-cancellable, and fees paid are non-refundable; and
(c) quantities purchased cannot be decreased during the relevant Term.
8.2. Company may require Customer to pre-pay fees in respect of Purchased Services, in which case Customer must purchase a Token in the amount specified in the Order Form.
8.3. Usage Expenses
8.3.1. In addition, for usage-based Services, Company may estimate the volumes or quantities expected to be consumed by Customer during the Term of each Order Form (“Anticipated Usage”) and will require pre-payment of costs associated with Anticipated Usage such as hosting fees (“Usage Expenses”), in which case Customer must purchase a Token in the amount specified in the Order Form.
8.3.2. If Customer cancels an Order Form before the end of the Term stated in the Order Form or Company cancels the Customer’s Order Form as a result of Customer’s breach thereof, Company shall retain the Usage Expenses, (or a reasonable portion of the Usage Expenses if Third Party Terms may be terminated without further liability after termination), and Customer acknowledges and agrees that such retention is a reasonable and proportionate measure to compensate Company for its anticipated losses. If only a portion of the Usage Expenses are retained, the Customer’s Account will be credited with the balance.
8.4. Free Trials
8.4.1. Company may, at its sole discretion, offer a Free Trial for a limited period of time. Customer may be required to enter Customer’s billing information in order to sign up for the Free Trial. If Customer enters Customer’s billing information when signing up for a Free Trial, Customer will not be charged by Company until the Free Trial has expired. On the last day of the Free Trial period, unless Customer cancelled the Service or Subscription, Customer will automatically be charged the fees applicable to the Service or Subscription the Customer selected.
8.4.2. Company reserves the right to modify the terms and conditions of the Free Trial offer or cancel such Free Trial offer at any time and without notice.
8.5.1. Company may, at its sole discretion, offer Tokens or allow the gifting of Tokens. Customer will be required to purchase a new Token at the expiry of the Token or require Customer to purchase a Service.
8.5.2. Company reserves the right to modify the terms and conditions applicable to any Token or, with prior notice, cancel Tokens at any time.
8.6. Invoicing and Payment
8.6.1. Customer will provide Company with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Company.
8.6.2. If Customer provides credit card information to Company, Customer authorises Company to charge such credit card for all Purchased Services listed in the Order Form, according to the billing frequency stated in the applicable Order Form.
8.6.3. If the Order Form specifies that payment will be by a method other than a credit card, Company will invoice Customer in advance, or otherwise according to the payment terms set out in the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due on the invoice date.
8.6.4. Customer is responsible for providing complete and accurate billing and contact information to Company and notifying Company of any changes to such information.
8.7.1. Except when required by law, fees and Tokens are non-refundable. Certain refund requests may be considered by Company on a case-by-case basis.
8.8. Overdue Charges.
8.8.1. If any invoiced amount is not received by Company by the due date, then without limiting Company’s rights or remedies:
(a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher; and
(b) Company may condition future Order Forms and renewals on payment terms other than those specified in clause 8.
8.9. Suspension of Service and Acceleration
8.9.1. If any charge owing by Customer under this or any other agreement for services is 30 days or more overdue, (or 7 or more days overdue in the case of amounts Customer has authorised Company to charge to Customer’s credit card), Company may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Company will give Customer at least 7 days’ prior notice that its Account is overdue, before suspending services to Customer. Company may also suspend or terminate an Account according to clause 7.
8.10. Payment Disputes
8.10.1. Company will not exercise its rights clause 8.8 (Overdue Charges) or clause 8.9 (Suspension of Service and Acceleration) section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
8.11.1. Company’s fees do not include any Taxes. Customer is responsible for paying all Taxes associated with its purchases hereunder.
8.11.2. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Company will invoice Customer and Customer will pay that amount unless Customer provides Company with a valid tax exemption certificate authorised by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessable against it based on its income, property and employees.
9.1. All rights in the Platform not expressly granted to Customer in this Agreement, shall remain vested in Company. This Agreement does not give Customer the right to reproduce, modify, distribute or publicly display the Platform, or any logo or trademark reproduced through the Platform. The Intellectual Property of Third Party Products remain vested in Third Party Licensors.
10.1. Customer assigns all rights, title and interest in any Feedback Customer or its Users provide Company.
10.2. If for any reason such assignment is ineffective, Customer agrees to grant Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and license to use, reproduce, disclose, sub-license, distribute, modify and exploit such Feedback, without restriction.
11.1. Ownership and licence of Customer Data
11.1.1. Save for Feedback that forms part of Customer Data, Company shall not acquire any rights to Customer Data, which shall remain vested in the Customer or the Users who provided the data.
11.1.2. Customer grants to Company, or will procure, a non-exclusive licence, to use Customer Data to enable Company to perform its obligations under this Agreement.
11.2.1. Customer warrants that Company’s use, processing or provisioning of Customer Data will not infringe or violate the Intellectual Property rights of third parties or result in a claim against us. Customer will indemnify us against third party claims or allegations that Customer Data infringe or violate the Intellectual Property rights of third parties (“IP Claim”), provided that we give Customer prompt written notice upon becoming aware of an IP Claim and give Customer sole control of the defence or settlement of the IP Claim.
11.2.2. In the event of an IP Claim, Customer will modify Customer Data so that it is no longer infringing; obtain a licence for continued use of the infringing Customer Data; or remove infringing Customer Data (“Infringement Remedy”).
11.2.3. If it is not possible to provide an Infringement Remedy, then Company or Customer may terminate each Order Form affected by the infringing Customer Data, provided in that case, Customer will remain liable for all fees up to the date of termination (which may include any non-refundable fees prepaid during the year of such termination).
11.3. Backup of Customer Data and deletion of Customer Data
11.3.1. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, Company will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, Company will delete copies of Customer Data in its systems or otherwise in its possession or control, except information Company is required by law to retain.
11.3.2. Customer who uses provisioned database services from Company must ensure that it makes use of Customer-provisioned data Capsule or database backup configuration, to ensure backup of all Customer’s Application Data.
Company does not perform application backup and will not be liable to Customer for loss of Customer’s Application Data resulting from Customer’s failure or delay in performing application backup.
12.1. Company is entitled to subcontract the performance of its obligations under this Agreement without Customer’s prior written consent, provided that Company will be primarily responsible for the performance of each subcontractor.
12.2. In respect of Sub-Processors, Company will process the personal information according to the CodeCaps DPA and will comply with the requirements set out in clause 13.2.12
13.1. Compliance with Data Protection Laws
13.1.1. The Parties will comply with their respective obligations under the applicable Data Protection Laws. If the Customer is subject to the Data Protection Laws of the United Kingdom or a member state of the European Economic Area, the CodeCaps’ DPA applies and is incorporated into this Agreement by reference.
13.1.2. If personal information is processed by Company under this Agreement, Company will process personal information that is part of Customer Data and Application Data as a data processor, according to Customer’s written processing instructions, only as necessary to perform Company’s obligations under this Agreement, and only for the duration of Customer’s Service.
13.1.3. If Customer provides personal information forming part of Customer Data and Application Data to Company, Customer will ensure that data subjects are provided with the notices and information in respect of personal information, or obtained the necessary consents required to comply with Data Protection Laws. Customer will not provide to Company special categories of personal information, except if agreed in the CodeCaps’ DPA. Customer is considered to be the Controller in respect of all personal information that forms part of Customer Data and Application Data.
13.1.4. Company will not be responsible to Customer for personal information that is processed by a Third Party Licensor when using a Third Party Product. In respect of a Third Party Product, Customer agrees that it will comply with Third Party Terms relating to personal information. Company can only make a Third Party Product available to Customer if Customer agrees to the comply with Third Party Terms relating to personal information.
13.2.1. Customer generally authorises any of Company’s Sub-Processors. Company shall make a list of Sub-Processors available to Customer and notify Customer of the appointment of any new Sub-Processor by publishing a notice on the Website. Customer may object to the appointment of a new Sub-Processor within 30 days of notice, and Company will consider Customer’s objection. If it is feasible, Company will propose an alternative solution, together with the costs for implementing it. If no solution is available that enables Customer’s continued use of the Services in compliance with the Data Protection Laws, Company or Customer may terminate this Agreement by giving the other party written notice. Provided in that case, Customer will remain liable for all fees up to the date of termination (which may include any non-refundable fees prepaid during the year of such termination).
13.3. Regions and data transfers
13.3.1. Company will host Customer Data and Customer-provisioned database/Capsules data (“Application Data”) in the Region(s) selected by Customer. Notwithstanding that Company hosts Customer Data and Application Data in the selected Region(s), Customer consents that Company may transfer Customer Data and Application Data to any countries Company’s Sub-Processors operate in, if required to provide the Services. In such case, Company will, depending on the Region(s) selected, process the personal information according to the CodeCaps DPA or an agreement that includes appropriate provisions regarding confidentiality and compliance with Data Protection Laws.
14.1. Company maintains appropriate administrative, physical, and technical safeguards in connection with the Platform.
14.2. Customer is responsible for maintaining appropriate administrative, physical, and technical safeguards in respect of Customer’s information technology systems and Customer Data. In addition, if the Customer provisions and configures the security of Application Data, Customer (and not Company) is responsible for the data security of the Application Data.
14.3. Where Company configures or manages third party cloud provider services or uses security tools made available by third party cloud providers (“Cloud Managed Services”), Customer agrees that it has independently reviewed and found such services and tools adequate for the protection of Customer Data and Application Data hosted by the third party cloud provider.
14.4. Company’s total aggregate liability in connection with Cloud Managed Services is the maximum amount stated in the Order Form.
14.5. Company does not accept liability for losses that a third party cloud provider is responsible for, such as losses arising from or in connection with a third party cloud provider’s cloud infrastructure.
15.1. The Parties agree to keep the terms of this Agreement and any disputes that may arise from it confidential for the Term of this Agreement and for a period of 2 (two) years after that, unless the disclosure is reasonably necessary to give effect to the terms of this Agreement or to exercise any legal remedy.
16.1. Company may terminate or suspend Customer’s Account if Customer is in breach of this Agreement, and such breach remains uncured despite receipt of notice calling on Customer to remedy the breach with the remedy period indicated in this Agreement (or the period indicated in the breach notice if no period is indicated in this Agreement).
16.2. Upon termination, Customer’s right to use the Platform and a Service will cease immediately.
16.3. If Customer wishes to terminate its Account, Customer may give Company 30 days written notice of its intention to terminate this Agreement, in which case Customer will remain liable for all fees up to the date of termination (which may include any non-refundable fees prepaid during the year of such termination).
17.1. Each Service is provided to Customer “AS IS”, “AS AVAILABLE” and with all faults and defects, without warranty of any kind. To the maximum extent permitted under applicable law, Company, on its own behalf and on behalf of its Affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the Services, including all implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage, or trade practice. Without limitation to the foregoing, Company provides no warranty or undertaking and makes no representation of any kind that the Service will meet Customer requirements, achieve any intended results, be compatible or work with any other software, applications, systems or services, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.
17.2. Without limiting the foregoing, to the fullest extent permitted by law, neither Company nor any of its Affiliates or service providers make any representation or warranty of any kind, express or implied:
17.2.1. as to the operation or availability of the Services, or the information, content, and materials or products included thereon;
17.2.2. that the Services will be uninterrupted or error-free;
17.2.3. as to the accuracy, reliability, or currency of any information or content provided through the Services;
17.2.4. that the Services, its servers, the content, or e-mails sent from or on behalf of Company are free of Malicious Code or other harmful components; and
17.3. Company has no obligation to indemnify, defend or hold Customer harmless against claims related to product liability or the infringement of Intellectual Property.
18.1. Company’s total aggregate liability under this Agreement shall be limited to the amount actually paid by Customer for the Services.
18.2. To the maximum extent permitted by applicable law, in no event shall Company be liable for any special, incidental, indirect, or consequential damages whatsoever (including, but not limited to, damages for loss of profits, loss or corruption of data or other information, for business interruption, loss arising from the use or inability to use the Service, Third Party Products used with the Service), even if a Party has been advised of the possibility of such damages.
18.3. Notwithstanding anything to the contrary in this clause 18 or otherwise in this Agreement, nothing limits or excludes a Party’s liability that cannot be limited or excluded under applicable law.
19.1. No delay, failure, or default, other than Customer’s failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by Force Majeure.
20.1. Notices pursuant to this Agreement shall be sent to Company at firstname.lastname@example.org and to Customer, at the address set out in the Order Form.
21.1. This Agreement will be solely governed by the laws of the Country, without reference to:
21.1.1. any conflicts of law principles that would apply the substantive laws of another jurisdiction to the Parties’ rights or obligations; and
21.1.2. the 1980 United Nations Convention on Contracts for the International Sale of Goods; and
21.1.3. other international laws.
21.2. The Parties consent to the exclusive jurisdiction of the courts of Country for all controversies and disputes arising out of or related to this Agreement.
22.1. Customer’s use of the Platform may also be subject to other local, regional, national, or international laws that apply to Customer (“Local Laws”). Customer represents and warrants that it will comply with all Local Laws.
22.2. Customer represents and warrants that:
22.2.1. it is not barred by any applicable laws from receiving the Services;
22.2.2. it is not located in a country that is subject to an embargo, trade or economic sanction or penalty imposed by the United States, United Kingdom or European Union;
22.2.3. it and its Users are not on any prohibited or restricted persons list of the United States, United Kingdom or European Union; and
22.2.4. it and its Users do not use the Services in violation of any export restriction or embargo.
23.1. If Customer has any concern or dispute about the Service, Customer agrees will first attempt to resolve the dispute informally by contacting Company.
24.1. When any number of days is prescribed in this Agreement, it shall be reckoned exclusively of the first and inclusively of the last day unless the last day falls on a day which is not a Business Day, in which case the last day shall be the following Business Day.
24.2. The rule of interpretation that a contract shall be interpreted against the Party responsible for the drafting and preparation thereof shall not apply.
24.3. Unless the context shows otherwise, a clause which includes a specific example or examples shall not be construed as limiting the meaning of the general wording preceding it.
24.4. The termination or expiry of this Agreement shall not affect those provisions which expressly provide that they will continue to operate after such termination or expiry, or those provisions which of necessity must continue to have effect after such termination or expiry, even where those clauses do not expressly provide for this.
24.5. In the event that any right or remedy is expressly stated to be available to any of the Parties in particular circumstances, such right or remedy shall be available without prejudice to or limitation of any other right or remedy that may be available to that Party in such circumstances, unless the contrary is expressly stated.
25.1. No assignment. Customer shall be entitled to transfer any right or obligation arising from this Agreement to another (including transfer by way of cession, assignment, delegation, sale, merger, operation of law or otherwise), without the prior written consent of Company.
25.2. Independent advice. Each of the Parties acknowledges that it has been free to secure independent legal advice and that it has either taken such independent legal advice or dispensed with the necessity of doing so at its own risk.
25.3. Binding on successors-in-title. This Agreement shall be binding on and enforceable against any successor-in-title or other legal representatives of the Parties as fully and effectually as if they had signed this Agreement in the first instance.
25.4. Independent contractors. The Parties agree and acknowledge that the relationship between the Parties is that of independent contractors. This Agreement shall accordingly not create a partnership or joint venture, nor constitute any Party as the other’s agent, partner, employee or representative.
25.5. No representation. No Party shall be entitled to represent the other Party, unless and only to the extent expressly provided otherwise in this Agreement.
25.6. Third-party rights. Unless expressly otherwise agreed herein, this Agreement is not intended to be for the benefit of (and shall not be enforceable by) any person other than the Parties.
25.7. Whole agreement. This Agreement constitutes the whole agreement between the Parties as to the subject matter hereof and no Party shall be bound by any undertakings, representations, warranties or the like not recorded herein.
25.8. Variation. No change, waiver or cancellation of this Agreement or any right or obligation arising from it shall be of any force and effect unless it is reduced to writing and that document is signed by each of the Parties.
25.9. Relaxation. No failure or delay on the part of any Party to enforce its rights shall in any circumstances be construed as a consent, election, limitation or waiver of rights by such Party.
25.10. Cost of legal services. Each Party will pay its own costs and expenses incurred by it in connection with the negotiation, drafting, re-drafting, entering into and implementation of legally binding documents. Should any Party instruct attorneys to take any steps to enforce any rights in terms of this Agreement arising from a breach thereof, then the breaching Party shall be liable for all legal and incidental costs, including legal fees on the attorney and own client scale, collection commission and tracing charges.
25.11. Severability. If any provision of this Agreement is held to be unenforceable or invalid, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
25.12. Authority. The person accepting this Agreement on behalf of any one of the Parties warrants and represents as a separate, personal obligation that he/she has the authority to do so, and that his/her signature was applied using a legally compliant and binding electronic signature.
25.13. Execution in separate counterparts. This Agreement may be executed in separate counterparts which, together, shall constitute one and the same Agreement.
25.14. Electronic signatures. The parties agree that this Agreement may be executed and delivered by electronic means, including the use of electronic signatures. Electronic signatures shall have the same legal effect as handwritten signatures. The parties further agree that electronic copies or scanned copies of the Agreement, when properly executed, shall be deemed to be original documents. As a personal and several obligation, each signatory hereby irrevocably undertakes in favour of the Parties to promptly execute a confirmatory copy of this Agreement by way of an originally-applied wet ink signature if called upon to do so by any of the Parties and the signature date of the confirmatory copy of the Agreement so applied shall be deemed to be the same as that of the originally signed text. Should any signatory fail to promptly comply with the aforesaid obligation, such person hereby irrevocably authorises any other Party to sign on their behalf as duly authorised agent.
1.1. COMPANY DISCLAIMS ANY LIABILITY IN CONNECTION WITH ANY PRODUCTS DESCRIBED IN THE SPECIAL CONDITIONS (“DISCLAIMED PRODUCTS”), TO THE FULLEST EXTENT PERMITTED IN LAW. IF COMPANY’S LIABILITY CANNOT BE DISCLAIMED IN LAW, COMPANY’S LIABILITY IS LIMITED TO $100.00.
1.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OR CORRUPTION OF DATA OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, LOSS ARISING FROM THE USE OR INABILITY TO USE THE SERVICE, THIRD PARTY PRODUCTS USED WITH THE SERVICE), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
2.1. THE DISCLAIMERS IN CLAUSE 1717 APPLIES TO DISCLAIMED PRODUCTS, AS IF SET OUT IN THIS ANNEXURE.
3.1. NOTWITHSTANDING ANYTHING TO THE CONTRARY, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO COMPANY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF:
3.1.1. CUSTOMER’S USE OF THE DISCLAIMED PRODUCTS DURING THE TERM THAT A FREE TRIAL OR BETA SERVICE IS MADE AVAILABLE;
3.1.2. ANY BREACH BY CUSTOMER OF THIS AGREEMENT;
3.1.3. AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.
4.1. From time to time, Company may make Beta Services available to Customer at no charge. Beta Services are not for production use and is made available “as is”, solely for evaluation of a potential new functionality, products or services that Company may make available in future. Beta Services are not subject to any warranty or guarantee of availability, are not supported, and may be discontinued at any time, in Company’s sole discretion.
4.2. Company does not back up Customer Data used in connection with any Beta Service.
4.3. A Beta Service is not a “Service” for the purpose of this Agreement. Notwithstanding the foregoing, Customer’s use of Beta Services is subject to any restrictions set out in this Agreement and may be subject to additional terms and conditions which are incorporated into this Agreement by reference and are legally binding. Customer may choose to try such Beta Services or not in its sole discretion.
5.1. If Customer registers on its or an Affiliate’s website for a Free Trial, Company will make the applicable Service available to Customer on a trial basis, free of charge until the earlier of:
5.1.1. the end of the Free Trial period for which Customer registered to use the applicable Service; or
5.1.2. the start date of any Purchased Service Subscriptions ordered by Customer for such Service; or
5.1.3. termination by Company if Company does not receive payment for a Purchased Service.
5.2. Additional terms and conditions may appear on the Free Trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
5.3. Company does not back up Customer Data provided during any Free Trial. Customer Data will be deleted by the end of a Free Trial if Customer does not purchase the Service after the Free Trial. Should Customer not wish to purchase the Service, Customer may export Customer Data before the end of the Free Trial, if a data export functionality is made available as part of the Free Trial.
5.4. Customer shall review the applicable documentation during the Free Trial period to become familiar with the features and functions of the Services before making a purchase.
6.1. Third Party Products
6.1.1. Company or Third Party Licensors may make available Third Party Products, including, for example, Non-CodeCaps Applications and implementation and other consulting services.
6.1.2. Any use by Customer of such Third Party Products, and any exchange of data between Customer and any Third Party Licensor, product or service is solely between Customer and the applicable Third Party Licensor according to Third Party License Terms.
6.1.3. Notwithstanding that Company may conduct certain security verification or testing prior to making Third Party Products available on the CodeCaps Marketplace, Company does not warrant or support Third Party Products, unless expressly provided otherwise in an Order Form.
6.1.4. Company is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third Party Products or its Third Party Licensors.
6.2. Integration with Non-Code Capsules Applications.
6.2.1. The Services may contain features designed to interoperate with Third Party Products. Company cannot guarantee the continued availability of such Service features and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third Party Products ceases to make the Non-CodeCaps Application available for interoperation with the corresponding Service features in a manner acceptable to Company.