VeriPark Customer Agreement
Updated November 2023
This VERIPARK CUSTOMER AGREEMENT For Subscription License Model acquired through Marketplace (“Agreement”) is between you (“you” or “Customer”) and the publisher (“Publisher”) from which you are procuring Offerings (defined below) and governs your use of Offerings purchased through either Microsoft AppSource or Azure Marketplace (collectively, “Marketplace”).
This Agreement is the parties’ entire agreement on this subject and merges and supersedes all related prior and contemporaneous agreements. By agreeing to these terms, you represent and warrant that you have the authority to accept this Agreement, and you also agree to be bound by its terms. This Agreement applies to all Orders entered into under this Agreement. Capitalized terms have the meanings given under “Definitions.”
Microsoft’s relationship with Customer and Publisher is solely governed by Microsoft’s respective agreements with those parties. Customer acknowledges and agrees that Microsoft service and other terms will be applicable for Microsoft services and Publisher does not have and disclaims all liability resulting from this Agreement (including any Orders) for any third parties’ actions or obligations including Microsoft.
1. LICENSE TO OFFERINGS
1.1 License grant. Offerings are licensed and not sold. Upon acceptance of an Order, and subject to Customer’s compliance with this Agreement, Publisher grants Customer a nonexclusive and limited license to use the ordered Offerings. These licenses are solely for Customer’s own use and business purposes and are nontransferable. Offerings shall solely be used at your headquarters and/or branches specified under the Order, by you; shall solely be used in accordance with the number of users, modules, servers and/or datacenters indicated under the Order.
Offerings may contain or be provided with components that are subject to open-source software licenses or third party software licenses. Any use of those components may be subject to additional terms and conditions and Customer agrees that any applicable licenses governing the use of the components will be incorporated by reference in this Agreement. Publisher does not undertake or ensure that during the term of licenses, licenses regarding third party software or open source software will stay valid or will be provided for the Customer’s use.
1.2 Duration of licenses. Licenses granted on a subscription basis expire at the end of the applicable subscription period set forth in the Order, unless renewed. Licenses granted for metered Offerings billed periodically based on usage continue as long as Customer continues to pay for its usage of the Offerings.
1.3 End Users. Customer will control access to and use of the Offerings by End Users and is responsible for any use of the Offerings that does not comply with this Agreement.
1.4 Affiliates. Customer may order Offerings for use by its Affiliates. If it does and Publisher agrees to such Order, the licenses granted to Customer under this Agreement will apply to such Affiliates, but Customer will have the sole right to enforce this Agreement against Publisher. Customer will remain responsible for all obligations under this Agreement and for its Affiliates’ compliance with this Agreement and any applicable Order(s).
1.5 Reservation of Rights. Publisher reserves all rights not expressly granted in this Agreement. Offerings are protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel. Rights to access or use Offerings on a device do not give Customer any right to implement Publisher’s patents or other intellectual property in the device itself or in any other software or devices.
1.6 Restrictions. Except as expressly permitted in this Agreement, Documentation or an Order, Customer must not (and is not licensed to):
a. copy, modify, reverse engineer, decompile, or disassemble any Offering, or attempt to do so;
b. install or use any third-party software or technology in any way that would subject Publisher’s intellectual property or technology to any other license terms;
c. work around any technical limitations in an Offering or restrictions in Documentation;
d. separate and run parts of an Offering on more than one device;
e. upgrade or downgrade parts of an Offering at different times;
f. use an Offering for any unlawful purpose;
g. transfer parts of an Offering separately; or
h. distribute, sublicense, rent, lease, or lend any Offerings, in whole or in part, or use them to offer hosting services to a third party.
1.7 Clarifications. No economic, moral or any other kind of rights are granted other than economic rights explicitly granted to you on Offering. For avoidance of doubt, below rights (including but not limited) are not granted to you and you are not entitled to carry out any disposal, legal transaction or other transaction in relation to below rights:
a. Right to process Offering, to make any changes in, additions to or extractions from Offering including but not limited to changes, additions or extractions made for processing, for editing, for adapting, for converting, for fixing errors;
b. Right to modify, change, alter or otherwise make derivates of the Offering;
c. Right to reproduce, use, view, or use on network in violation of territory, term, purpose of use, user number and other restrictions specified under this Agreement, Documentation and Order and in general to transfer, keep or install Offering; right to transfer the Offering;
d. Right to reproduce Offering for the purposes other than making backup copies or disaster recovery copies with Publisher’s written consent and in violation of methods determined by Publisher;
e. Right to reverse-engineer, to decompile, to disassemble, to convert into a different programming language, to convert preparation designs into a high level programming language, to observe, inspect or test the operation of Offering;
f. Right to distribute in general and in this context, to lease, lend, sell, license or distribute in other ways the Offering or reproduced copies;
g. Moral rights;
h. Right to represent in general, direct or indirect representation;
i. Right to make public through electronic means.
1.8 License transfers. Customer may only transfer fully-paid, perpetual licenses to (1) an Affiliate or (2) a third party solely in connection with the transfer of hardware to which, or employees to whom, the licenses have been assigned as part of (A) a divestiture of all or part of an Affiliate or (B) a merger involving Customer or an Affiliate. Upon such transfer, Customer must uninstall and discontinue using the licensed Offering and render any copies unusable. Customer must notify Publisher of a License transfer and provide the transferee a copy of this Agreement and any other documents necessary to show the scope, purpose, and limitations of the licenses transferred. Attempted license transfers that do not comply with this section are void.
1.9 Feedback. Any Feedback is given voluntarily, and the provider grants to the recipient, without charge, a non-exclusive license under provider’s owned or controlled non-patent intellectual property rights to make, use, modify, distribute, and commercialize the Feedback as part of any of recipient’s products and services, in whole or in part and without regard to whether such
Feedback is marked or otherwise designated by the provider as confidential. The provider retains all other rights in any Feedback and limits the rights granted under this section to licenses under its owned or controlled non-patent intellectual property rights in the Feedback (which do not extend to any technologies that may be necessary to make or use any product or service that incorporates, but are not expressly part of, the Feedback, such as enabling technologies).
2. PRIVACY
2.1 EU Standard Contractual Clauses. To the extent applicable, the parties will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland. All transfers of Customer Data out of the European Union, European Economic Area, and Switzerland will be governed by the Standard Contractual Clauses, as designated by the European Commission, made available by the Publisher at the applicable URL for such terms or as otherwise communicated to Customer.
2.2 Personal Data. Customer consents to the processing of Personal Data by Publisher and its Affiliates, and their respective agents and Subcontractors, as provided in this Agreement. Before providing Personal Data to Publisher, Customer will obtain all required consents from third parties (including Customer’s contacts, partners, distributors, administrators, and employees) under applicable privacy and Data Protection Laws and will fulfill all necessary obligations required under the relevant data protection legislation.
2.3 Processing of Personal Data; GDPR. To the extent Publisher is a processor or subprocessor of Personal Data subject to the GDPR, the Standard Contractual Clauses govern that processing and the parties also agree to the following terms in this subsection (“Processing of Personal Data; GDPR”):
a. Processor and Controller Roles and Responsibilities. Customer and Publisher agree that Customer is the controller of Personal Data and Publisher is the processor of such data, except when (a) Customer acts as a processor of Personal Data, in which case Publisher is a subprocessor or (b) stated otherwise in any Offering-specific terms. Publisher will process Personal Data only on documented instructions from Customer. In any instance where the GDPR applies and Customer is a processor, Customer warrants to Publisher that Customer’s instructions, including appointment of Processor as a processor or subprocessor, have been authorized by the relevant controller. Customer hereby provides its consent to the Publisher to transfer Personal Data for which Publisher acts as a processor or sub-processor of Customer or make this Personal Data available to Publisher’s Affiliates or business partners limited to the nature and purposes of this Agreement and Offerings.
b. Processing Details. The parties acknowledge and agree that:
i. the subject-matter of the processing is limited to Personal Data within the scope of the GDPR;
ii. the duration of the processing will be for the duration of the Customer’s right to use the Offering and until all Personal Data is deleted or returned in accordance with Customer instructions or the terms of this Agreement;
iii. the nature and purpose of the processing will be to provide the Offering pursuant to this Agreement;
iv. the types of Personal Data processed by the Offering include those expressly identified in Article 4 of the GDPR; and
v. the categories of data subjects are Customer’s representatives and end users, such as employees, contractors, collaborators, and customers, and other data subjects whose Personal Data is contained within any data made available to Publisher by Customer.
c. Data Subject Rights; Assistance with Requests. Publisher will make information available to Customer in a manner consistent with the functionality of the Offering and Publisher’s role as a processor of Personal Data of data subjects and the ability to fulfill data subject requests to exercise their rights under the GDPR. Publisher will comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request. If Publisher receives a request from Customer’s data subject to exercise one or more of its rights under the GDPR in connection with an Offering for which Publisher is a data processor or subprocessor, Publisher will redirect the data subject to make its request directly to Customer. Customer will be responsible for responding to any such request including, where necessary, by using the functionality of the Offering. Publisher will comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request.
d. Use of Subprocessors. Customer consents to Publisher using the subprocessors listed at the applicable Publisher URL or as otherwise communicated to Customer, and its Affiliates and business partners. Publisher remains responsible for its subprocessors’ compliance with the obligations herein. Publisher may update its list of subprocessors from time to time, by providing Customer at least 14 days notice before providing any new subprocessor with access to Personal Data. If Customer does not approve of any such changes, Customer may inform Publisher of such non approval and Parties will initiate good faithed discussions to remove or replace such sub-processor or to come to other reasonable solutions.
e. Records of Processing Activities. Publisher will maintain all records required by Article 30(2) of the GDPR and, to the extent applicable to the processing of Personal Data on behalf of Customer, make them available to Customer upon request.
2.4 Security. Publisher will take appropriate security measures that are required by Data Protection Laws and in accordance with good industry practice relating to data security.
2.5 Support Data. Publisher may collect and use Support Data internally to provide technical support for the Offering. Publisher will not use Support Data for any other purpose unless otherwise agreed in writing by the parties.
3. CONFIDENTIALITY
3.1 Non-Disclosure Agreement. The parties will treat all confidential information exchanged between the parties under this Agreement in accordance with the separate nondisclosure agreement (“NDA”) executed by the parties. If no separate NDA is in effect, the following provisions apply to the parties’ exchange of confidential information.
3.2 Confidential Information. “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Customer Data, Support Data, the terms of this Agreement, and Customer’s account authentication credentials. Confidential Information does not include information that: (1) becomes publicly available without a breach of a confidentiality obligation;
(2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products, or services.
3.3 Protection of Confidential Information. Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party.
3.4 Disclosure required by law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.
3.5 Duration of Confidentiality obligation. These obligations apply: (1) for Customer Data, until it is deleted by Publisher; and (2) for all other Confidential Information, for a period of five years after a party receives the Confidential Information.
4. SERVICE LEVEL AGREEMENTS (SLA)
Publisher may offer further availability and support obligations for an Offering. If applicable, such service level agreement (“SLA”) will be made available by the Publisher at the applicable URL for such SLA or as otherwise communicated to Customer.
5. VERIFYING COMPLIANCE
5.1 Customer must keep records relating to Offerings it and its Affiliates use or distribution. At Publisher’s expense, Publisher may verify Customer’s and its Affiliates’ compliance with this Agreement by directing an independent auditor (under nondisclosure obligations) to conduct an audit or ask Customer to complete a self-audit process. Customer must promptly provide any information and documents that Publisher or the auditor reasonably requests related to the verification and access to systems running the Offerings. If verification or self-audit reveals any unlicensed use, Customer must order sufficient licenses to cover the period of its unlicensed use. The audits may be conducted more frequently, if required by the party’s auditors and/or regulators, of books and records related to this Agreement. The expenses for all such audit will be borne by the party conducting the audit. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance.
5.2 Upon request, Publisher will make available to Customer all information necessary to conduct an audit and demonstrate compliance under GDPR provisions for the processing of Personal Data. Customer may request information through a security questionnaire or self-attestation.
6. REPRESENTATION AND WARRANTIES
6.1 Publisher continuously represents and warrants that:
a. the Offering will substantially conform to the Documentation;
b. the Offering will not:
i. to the best of Publisher’s knowledge, infringe or violate any third party patent, copyright, trademark, trade secret, or other proprietary right; or
ii. contain viruses or other malicious code that will degrade or infect any products, services, software, or Customer’s network or systems, and
c. while performing under this Agreement, Publisher will comply with Anti-Corruption Laws, and will provide training to its employees regarding Anti-Corruption Laws.
6.2 Disclaimer. Except as expressly stated in this Agreement, the Offering is provided as is. To the maximum extent permitted by law, Publisher disclaims any and all other warranties (express, implied or statutory, or otherwise) including of merchantability or fitness for a particular
purpose, whether arising by a course of dealing, usage or trade practice, or course of performance.
7. DEFENSE OF THIRD-PARTY CLAIMS
7.1 By Customer. Customer will defend Publisher and its Affiliates from and against any and all third party claims, actions, suits, proceedings arising from or related to: Customer’s or any authorized user’s violation of this Agreement or user terms (a “Claims Against Publisher”), and will indemnify Publisher and its Affiliates for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Publisher or its Affiliates in connection with or as a result of, and for amounts paid by Publisher or its Affiliates under a settlement Customer approves of in connection with a Claim Against Publisher. Publisher must provide Customer with prompt written notice of any Claims Against Publishers and allow Customer the right to assume the exclusive defense and control of the claim and cooperate with any reasonable requests assisting Customer’s defense and settlement of such matter.
7.2 By Publisher. Publisher will defend Customer from and against any and all third party claims, actions, suits, proceedings, and demands alleging that: (i) the use of the Offering as permitted under the Contract infringes or misappropriates a third party’s intellectual property rights and (ii) any violation of applicable law including Data Protection Laws (a “Claim Against Customer”), and will indemnify Customer for all reasonable attorney’s fees incurred and damages and other costs finally awarded against Customer in connection with or as a result of, and for amounts paid by Customer under a settlement Publisher approve of in connection with a Claim Against Customer; provided, however, that the Publisher has no liability if a Claim Against Customer arises from: (1) Customer Data or non-Publisher products, including third-party software; and (2) any modification, combination or development of the Offering that is not performed or authorized in writing by Publisher, including in the use of any application programming interface (API). Customer must provide Publisher with prompt written notice of any Claim Against Customer and allow Publisher the right to assume the exclusive defense and control and cooperate with any reasonable requests assisting Publisher’s defense and settlement of such matter. This section states Publisher sole liability with respect to, and Customer’s exclusive remedy against Publisher for, any Claim Against Customer. Prior to making any claims, Customer shall give notice and sufficient time to Publisher, for Publisher to either (at Publisher’s discretion): (i) obtain the right for continued use of the infringing Offering; (ii) modify the infringing Offering to avoid such infringement while obtaining equivalent usage; (iii) substitute for the Offering or works with alternative equivalent Offering as applicable; or (iv) provide a refund of the related fees paid by the Customer in connection with that portion of the Offering, under the claim of infringement subject to the liability limitations provided under this Agreement on a pro rata basis; and is the Customer’s sole remedy, with respect to the infringement or misappropriation.
7.3 Notwithstanding anything contained in the above subsections (a) and (b), (1) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel; and (2) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified parties (such consent not to be unreasonably withheld), if: (A) the third party asserting the claim is a government agency; (B) the settlement arguably involves the making of admissions by the indemnified parties; (C) the settlement does not include a full release of liability for the indemnified parties; or (D) the settlement includes terms other than a full release of liability for the indemnified parties and the payment of money.
8. LIMITATION OF LIABILITY
For each Offering, Publisher’s party’s maximum, aggregate liability to the other under this Agreement is limited to direct damages finally awarded in an amount not to exceed the amounts Customer was required to pay for the Offerings during the term of the applicable licenses, subject to the following:
a. Subscriptions. For Offerings ordered on a subscription basis, Publisher’s maximum liability to Customer for any incident giving rise to a claim will not exceed the amount Customer paid for the Offering (only for Publisher’s solutions, excluding third party licenses and fees) during the 12 months before the incident or $100,000, whichever is greater.
For Offerings ordered on a subscription basis, Publisher’s maximum liability to Customer for any unauthorized access, use, or disclosure of Customer Data due to a breach of Publisher’s obligations under Section II(6) (Security), Publisher’s maximum liability to Customer will not exceed two times (2x) the amount Customer paid for the Offering (only for Publisher’s solutions, excluding third party licenses and fees) during the 12 month before the incident or $500,000, whichever is greater.
b. No Indirect Damages. In no event will Publisher be liable for indirect, incidental, special, punitive, or consequential damages, or loss of use, loss of profits, or interruption of business, however caused or on any theory of liability.
c. Testing and Review. Customer is individually and solely responsible of testing all Offerings, solutions, software and other computer programs and of using such for its customers or other users and/or employees. Published does not have any responsibility for End User’s use of the solution and Customer shall be solely responsible.
d. Liability for Third Party Services. Publisher has no liability for any claims arising out of or in connection with Microsoft solutions, third party solutions, products, software, licenses, Microsoft Azure or similar environment.
9. PRICING AND PAYMENT
Microsoft will invoice and charge Customer under the terms of the Microsoft Commercial Marketplace Terms of Use and applicable Order.
In case of failure to due payment of invoices or rejection of invoices Publisher, amongst other available remedies and claims, shall be entitled discontinue any works and services, to cancel licenses and/or to the extent possible, not to provide maintenance or support.
10. TERM AND TERMINATION
10.1 Term. This Agreement is effective until terminated by a party, as described below. The term for each Order will be set forth therein.
10.2 Termination without cause. Unless otherwise set forth in an Order, either party may terminate this Agreement or any Order without cause on 90 days’ notice. Licenses granted on a subscription basis will
end on the end of such notice period, subject to the terms of this Agreement. Publisher will not provide refunds or credits for any partial subscription period(s) if the Agreement or an Order is terminated without cause.
10.3 Termination for cause. Without limiting other remedies it may have, either party may terminate this Agreement or any Order immediately on notice if (i) the other party materially breaches the Agreement or an Order, and fails to cure the breach within 30 days after receipt of notice of the breach; or (ii) the other party becomes Insolvent. Upon such termination, the following will apply:
a. All licenses granted under this Agreement will terminate immediately.
b. All amounts due under any unpaid invoices will become due and payable immediately. For metered Offerings billed periodically based on usage, Customer must immediately pay for unpaid usage as of the termination date.
c. If Publisher is in material breach, Customer will receive a credit for any subscription fees which can be used on Publisher’s software licenses, including amounts paid in advance for unused consumption for any usage period after the termination date.
10.4 Suspension. Publisher may suspend use of the Offering without terminating this Agreement during any period of breach. Publisher will give Customer reasonable notice before suspending the Offering, which notice can be a maximum of 1 month. Suspension will only be to the extent reasonably necessary.
10.5 Discounts. The Customer shall pay any discount amount offered to such Customer if the Agreement is terminated.
10.6 Third Party Fees. Any third party license or other service fees shall become due and payable by the Customer in case of termination of this Agreement.
10.7 Survival. The terms of this Agreement, including the applicable Order, that are likely to require performance, or have application to events that may occur, after the termination or expiration of this Agreement or any Order, will survive termination or expiration, including all indemnity obligations and procedures.
11. MISCELLANEOUS
11.1 Entire Agreement. This Agreement supersedes all prior and contemporaneous communications, whether written or oral, regarding the subject matter covered in this Agreement. If there is a conflict between any parts of this Agreement, the following order of precedence will apply:
a. Order;
b. this Agreement;
c. Service Level Agreement (SLA); and
d. Documentation.
11.2 Independent contractors. The parties are independent contractors. Customer and Publisher each may develop products independently without using the other’s Confidential Information.
11.3 Agreement not exclusive. Customer is free to enter into agreements to license, use, and promote the services of others.
11.4 Assignment. Publisher may assign this Agreement to an Affiliate, but it must notify the Customer in writing of the assignment. Customer consents to the assignment to an Affiliate or third party, without prior notice, of any rights Publisher may have under this Agreement to receive payment and enforce Customer's payment obligations, and all assignees may further assign such rights without further consent. Furthermore, Publisher may assign this Agreement without the consent of the Customer in connection with a merger, reorganization, acquisition, or other transfer of all or part of such Publisher’s assets. Except from above, any attempted assignment without required approval will be void.
11.5 Subcontractors and Affiliates. Publisher, may execute agreements with subcontractors, affiliates or partners for provision of Offerings or any obligations under the Agreement.
11.6 Severability. If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.
11.7 Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.
11.8 No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.
11.9 Taxes. Any fees, prices, charges or amounts do not include any taxes all of which shall be for Customer’s account. Customer shall individually bear all taxes and deductions arising out of and in relation to this Agreement. If Publisher is required to pay any taxes or duties or other relevant expenses, the Customer shall reimburse Publisher for such amounts.
11.10 Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Publisher must be sent to the address stated in the Order. Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. Publisher may send notices and other information to Customer by email or other electronic form.
11.11 Publicity and use of trademarks. Publisher is entitled to use whole or parts of information regarding Offering and related services provided to the Customer for marketing, advertisement, and publicity purposes, and use its trademarks accordingly.
11.12 Applicable law and competent authority. This Agreement is executed under the laws of Türkiye, shall be governed by the laws of Türkiye and be interpreted accordingly. All disputes arising out of or in connection with the present Agreement or Offering shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. No award or procedural order made in the arbitration shall be published. Arbitration shall be held in English.
11.13 Order of precedence. The body of this Agreement will take precedence over any conflicting terms in other documents that are part of this Agreement that are not expressly resolved in those documents. Terms in an amendment control over the amended document and any prior amendments concerning the same subject matter.
11.14 Government procurement rules. By accepting this Agreement, Customer represents and warrants that: (1) it has complied and will comply with all applicable government procurement laws and regulations; (2) it is authorized to enter into this Agreement; and (3) this Agreement satisfies all applicable procurement requirements.
11.15 Construction. Neither party has entered this Agreement in reliance on anything not contained or incorporated in it. This Agreement is in English only. Any translation of this Agreement into another language is for reference only and without legal effect. If a court of competent jurisdiction finds any term of the Agreement unenforceable, the Agreement will be deemed modified as necessary to make it enforceable, and the rest of the Agreement will be fully enforced to affect the parties’ intent. Lists of examples following “including”, “e.g.”, “for example”, or the like are interpreted to include “without limitation,” unless qualified by words such as “only” or “solely.” This Agreement will be interpreted according to its plain meaning without presuming that it should favor either party. Unless stated or context requires otherwise:
a. all internal references are to this Agreement and its parties;
b. all monetary amounts are expressed and, if applicable, payable, in U.S. dollars;
c. URLs are understood to also refer to successors, localizations, and information or resources linked from within websites at those URLs;
d. a party’s choices under this Agreement are in its sole discretion, subject to any implied duty of good faith;
e. “written” or “in writing” means a paper document only, except where email is expressly authorized;
f. “days” means calendar days;
g. “may” means that the applicable party has a right, but not a concomitant duty,
h. “partner,” if used in this Agreement or related documents, is used in its common, marketing sense and does not imply a partnership;
i. “current” or “currently” means “as of the Effective Date” but “then-current” means the present time when the applicable right is exercised or performance rendered or measured;
j. “notify” means to give notice under subsection (i) above; and
k. a writing is “signed” when it has been hand-signed (i.e., with a pen) or signed via an electronic signature service by a duly authorized representative of the signing party.
12. DEFINITIONS
“Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party.
“Anti-Corruption Laws” means all laws against fraud, bribery, corruption, inaccurate books and records, inadequate internal controls, money-laundering, and illegal software, including the U.S. Foreign Corrupt Practices Act.
“Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.
“Confidential Information” is defined in the “Confidentiality” section.
“Customer Data” means all data, including all text, sound, software, image or video files that are provided to Publisher or its Affiliates by, or on behalf of, Customer and its Affiliates through use of the Offering. Customer Data does not include Support Data.
“Data Protection Law” means any law applicable to Publisher or Customer, relating to data security, data protection and/or privacy, including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of personal data and the free movement of that data (“GDPR”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted.
“Documentation” means all user manuals, handbooks, training material, requirements, and other written or electronic materials Publisher makes available for, or that result from use of, the Offering.
“End User” means any person Customer permits to use an Offering or access Customer Data. “Feedback” means ideas, suggestions, comments, input, or know-how, in any form, that one party provides to the other in relation to recipient’s Confidential Information, products, or services. Feedback does not include sales forecasts, future release schedules, marketing plans, financial results, and high-level plans (e.g., feature lists) for future products.
“Insolvent” means admitting in writing the inability to pay debts as they mature; making a general assignment for the benefit of creditors; suffering or permitting the appointment of a trustee or receiver for all or any of its (i.e., the non-terminating party’s) assets, unless such appointment is vacated or dismissed within 60 days from the date of appointment; filing (or having filed) any petition as a debtor under any provision of law relating to insolvency, unless such petition and all related proceedings are dismissed within 60 days of such filing; being adjudicated insolvent or bankrupt; having wound up or liquidated; or ceasing to carry on business.
“Offering” means all services, websites (including hosting), solutions, platforms, and products identified in an Order and that Publisher makes available under or in relation to this Agreement, including the software, equipment, technology, and services necessary for Publisher to provide the foregoing. Offering availability may vary by region.
“Order” means an ordering document used to transact the Offering via the Marketplace.
“Personal Data” means any information relating to an identified or identifiable natural person.
“Representatives” means a party’s employees, Affiliates, contractors, advisors and consultants.
“Standard Contractual Clauses” means the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.
“Subcontractor” means any third party: (1) to whom Publisher delegates its obligations under this Agreement, including a Publisher Affiliate not contracting directly with Customer through an Order; or (2) who, in performing under a contract between it and Publisher or a Publisher Affiliate, stores, collects, transfers or otherwise processes Personal Data (obtained or accessed in connection with performing under this Agreement) or other Customer Confidential Information.
“Support Data” means all data, including all text, sound, video, image files, or software, that are provided to Publisher by or on behalf of Customer (or that Customer authorizes Publisher to obtain from an Offering) through an engagement with Publisher to obtain technical support for the Offering covered under this Agreement.
“Use” means to copy, download, install, run, access, display, use or otherwise interact with.