End User License Agreement
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE DESVIX SOLUTION:
BY COPYING, INSTALLING, ACCESSING, OR USING ALL OR ANY PORTION OF THE DESVIX SOLUTION, YOU, ON BEHALF OF YOURSELF AND ANY ENTITY YOU REPRESENT, ACCEPT AND AGREE TO BE LEGALLY BOUND BY ALL THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT. THIS INCLUDES, WITHOUT LIMITATION, THE PROVISIONS ON LICENSE RESTRICTIONS (E.G., CLAUSE 5, IF APPLICABLE, OR AS SET FORTH HEREIN), WARRANTIES AND DISCLAIMERS (E.G., CLAUSE 9), AND LIMITATION OF LIABILITY (E.G., CLAUSE 11). YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND ANY ENTITY YOU REPRESENT, WITH THE SAME FORCE AND EFFECT AS A WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, OR IF YOU ARE UNDER THE AGE OF 18 (OR THE AGE OF LEGAL MAJORITY IN YOUR JURISDICTION IF HIGHER), OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND THE ENTITY YOU REPRESENT, YOU MUST NOT COPY, INSTALL, ACCESS, OR USE ANY PART OF THE DESVIX SOLUTION. IN THE EVENT YOU HAVE ANOTHER CURRENT, DIRECTLY EXECUTED WRITTEN AGREEMENT WITH DESVIX SPECIFICALLY GOVERNING YOUR USE OF THE DESVIX SOLUTION (FOR EXAMPLE, A MASTER SUBSCRIPTION AGREEMENT OR SIMILAR ENTERPRISE AGREEMENT), THE TERMS OF THAT SEPARATE WRITTEN AGREEMENT SHALL TAKE PRECEDENCE OVER AND SUPERSEDE ANY CONFLICTING TERMS IN THIS AGREEMENT. THIS AGREEMENT WILL GOVERN ALL USE NOT COVERED BY SUCH A SEPARATE WRITTEN AGREEMENT.
This End User License Agreement (“EULA”) is entered into between DESVIX (hereinafter the “DESVIX”) and yourself (hereinafter the “Customer”), hereinafter each a “Party”, and together the “Parties”.
1. Definitions
“Affiliate” means, with respect to a party, an entity which directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the power, directly or indirectly, to direct, or to cause the direction of, the management and policies of an entity, through majority ownership of voting securities or equity interests.
“Agreement” means this EULA and any terms incorporated by reference into this EULA, which governs the provision of the Services provided to you, including any addenda and exhibits.
DESVIX “Business Days” means Monday through Friday, excluding public holidays in the country whose laws govern this Agreement.
“Cloud Service” means the DESVIX proprietary software as a service provided for use over the internet (including without limitation its features, functions, and user interface) and all modified, updated, or enhanced versions thereof that DESVIX may provide to you.
“Confidential Information” shall have the meaning given to it in Section 4 of this Agreement.
“Designated Person” means a person that is listed on, or owned or controlled by a person listed on the “Specially Designated Nationals and Blocked Persons” list issued by Office of Foreign Assets Controls of the US Department of Treasury, the Consolidated List of Financial Sanctions Targets issued by Her Majesty’s Treasury, or the European Union’s Consolidated list of persons, groups and entities subject to EU financial sanctions, or any similar list issued or maintained or made public by any of the Sanctions Authorities relating to a Sanctions Regime.
“Documentation” means the operating instructions, user manuals, product specifications, “read-me” files, and other documentation that DESVIX makes available to you in hard copy or electronic form for the DESVIX Solution, including any modified, updated, or enhanced versions of such documentation.
“DESVIX Solution” means the Cloud Services and the Software.
“Intellectual Property Rights” means all intellectual property rights, including copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, and all other proprietary rights, whether registered or unregistered.
“Sanctions Regime” means sanctions (including but not limited to a sanctions program relating to economic sanctions, trade sanctions, export controls, embargoes or international boycotts of any type) administered, enacted or enforced by: (i) the United Nations; (ii) the United States government; (iii) the European Union or its Member States; (iv) the United Kingdom; or (v) the respective governmental institutions and agencies of any of the foregoing, including without limitation, the Office of Foreign Assets Control of the US Department of Treasury, the United States Department of State, and Her Majesty’s Treasury (together “Sanctions Authorities”).
“Services” means the DESVIX Solution and Documentation.
“Software” means the DESVIX proprietary software applications and all modified, updated, or enhanced versions thereof that DESVIX makes available to you.
“Statistical Data” means any statistics relating to your usage of the Services, including but not limited to organization ID, username, log-in IP address, log-in and log-out times, crash reports, file type, and file size.
“Usage Parameters” means the parameters specified in the Documentation or other writing by DESVIX regarding the scope of use of the DESVIX Solution by you.
“Customer Data” means the data: (a) inputted into the DESVIX Solution by you for the purpose of using the DESVIX Solution or facilitating your use of the DESVIX Solution; and (b) that you derive from your use of the DESVIX Solution.
2. Services
License Grant. Subject to your compliance with the terms and conditions of this Agreement, DESVIX grants to you a limited, non-sublicensable, non-exclusive, non-transferable, worldwide license to: (a) access and use the Cloud Services; and (b) install, execute, and use the Software on your hardware in object code form only.][A1][MF2]
Beta Features. Beta Features are subject to the Beta Terms. DESVIX may, in its sole discretion: (a) cease providing Beta Features at any time; or (b) cease providing Beta Features free of charge and require you to purchase such features for continued use as part of the DESVIX Solution. You shall not attempt to circumvent, dismantle, or otherwise interfere with any time-control disabling functionality in any Beta Feature that causes the Beta Feature to cease functioning. “Beta Feature(s)” means any DESVIX Solution feature that is identified by DESVIX, including via the applicable DESVIX Solution user interface or other communications to you, as “Beta”, “Alpha”, “Experimental”, “Limited Release” or “Pre-Release” or that is otherwise identified by DESVIX as unsupported.
3. Customer Responsibilities
The Customer shall:
be solely responsible for the accuracy, quality, integrity, legality, and appropriateness of all data and content submitted by or for Customer to the Services (“Customer Data“) and for all activity conducted through Customer’s account(s) within the DESVIX Solution.
use commercially reasonable efforts to prevent unauthorized access to or use of Customers account(s) and the Services, safeguard all account credentials, and notify DESVIX promptly in a way which is accordance with Clause 15.11. of any such unauthorized access, use, or any other suspected security breach.
ensure that it will use the Services only in accordance with the Documentation, this Agreement (including the AUP), and all applicable laws and regulations.
not exceed the Usage Parameters applicable to its subscription and.
ensure that its network, systems, and third-party hardware and software comply with the relevant technical specifications provided by DESVIX for the use of the Services, as such specifications may be updated by DESVIX from time to time upon reasonable notice to Customer.
at all times comply with the AUP.
be responsible for obtaining and maintaining all necessary rights, consents, and permissions required to allow Customer to submit Customer Data to the Services and to grant DESVIX the rights to process Customer Data as contemplated by this Agreement and any applicable addendum.
provide DESVIX with reasonable cooperation and assistance as DESVIX may request to enable the provision of support, investigate issues, or otherwise facilitate the performance of DESVIX’s obligations or Customer’s use of the Services; and
provide and maintain accurate, complete, and current account, contact, and billing information with DESVIX.
4.1. “Confidential Information” means any and all data or information disclosed by one party (the “Discloser“) to the other party (the “Recipient“), or learned by the Recipient in connection with the performance of this Agreement, regardless of the form or manner in which it is communicated or recorded, which (a) is identified as “confidential” or “proprietary” at the time of disclosure or within a reasonable time thereafter; or (b) by its nature, a reasonable person would understand to be confidential or proprietary. Confidential Information includes, but is not limited to, commercial, financial, technical, legal, security-related information, product roadmaps, unreleased features, templates, contract terms, customer information, drawings, designs, technologies, studies, processes, systems, ideas, know-how, computer programs (including object and source codes), database technologies, system architectures, identified vulnerabilities, internal governance documents, and any other documentation or material which, by its nature, may reasonably be considered confidential, regardless of whether such information is designated as Confidential information. For the avoidance of doubt, all non-public aspects of DESVIX’s Software, Services, and related documentation are Confidential Information of DESVIX.
4.2. Confidential Information does not include information that the Recipient can demonstrate:
is or becomes generally known to the public through no fault or breach of this Agreement by the Recipient or its representatives.
was rightfully known by the Recipient at the time of disclosure free of any obligation of confidentiality.
was independently developed by the Recipient without use of or reference to the Discloser’s Confidential Information; or
is rightfully obtained by the Recipient from a third party authorized to make such disclosure without restriction on use or disclosure.
4.3. The Recipient shall maintain the Confidential Information in strict confidence, not use such Confidential Information for any purpose except as strictly necessary to fulfil its obligations or exercise its rights expressly granted under this Agreement and not disclose such Confidential Information to any third party except as expressly permitted in Clause 4.5.
4.4. The Recipient shall protect the secrecy of and prevent disclosure and unauthorized use of the Discloser’s Confidential Information using the same degree of care that it takes to protect its own confidential information of a similar nature, and in no event use less than reasonable care.
4.5. The Recipient may disclose the Discloser’s Confidential Information only to its employees, officers, directors, contractors, agents, and legal or financial advisors (collectively, “Representatives“) who have a legitimate need to know such information for the Permitted Purpose and who are bound by written confidentiality obligations at least as stringent as those contained in this Agreement. The Recipient shall be responsible for any breach of these confidentiality obligations by its Representatives.
4.6. If the Recipient is required by applicable law, regulation, or a valid judicial or administrative process to disclose Discloser’s Confidential Information, the Recipient shall, to the extent legally permissible, first provide the Discloser with prompt written notice of such requirement to enable the Discloser to seek a protective order or other appropriate remedy. If such protective order or other remedy is not obtained, the Recipient shall furnish only that portion of the Confidential Information which it is legally advised is required to be disclosed and shall exercise reasonable efforts to obtain assurances that confidential treatment will be accorded to the disclosed Confidential Information.
4.7. The obligations of confidentiality set forth herein shall survive the termination or expiration of this Agreement and continue for 5 years from the date of such termination or expiration. Notwithstanding the foregoing, with respect to any Confidential Information that constitutes a trade secret under Governing law, the Recipient’s obligations shall continue for as long as such information remains a trade secret.
5. Restrictions
5.1. Except as expressly detailed in this Agreement, and to the maximum extent permitted by applicable law, Customer shall not (and shall not allow any third party to):
decompile, disassemble, reverse engineer, or otherwise attempt to derive the structure of the DESVIX Solution or the source code from the DESVIX Solution.
sell, resell, distribute, license, sublicense, assign, transfer, provide, lease, lend, rent, disclose, use for timesharing or service bureau purposes, or otherwise use or make available for the benefit of any third party, the Services or any part thereof.
use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to DESVIX, or to disclose to any third party any benchmarking, comparative study, or performance analysis involving the Services without DESVIX’s prior written consent.
modify, adapt, translate, or create derivative works of the DESVIX Solution or Documentation, or any part thereof; or
remove, delete, alter, or obscure in any way any proprietary rights notices (including copyright, trademark, or patent notices) of DESVIX or its suppliers on or within the DESVIX Solution, Services, or Documentation.
use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or intellectual property rights.
introduce or permit the introduction of any virus, worm, trojan horse, malware, or other harmful or malicious code into the Services or DESVIX’s systems.
interfere with, disrupt, alter, or modify the Services or any part thereof, or interfere with the use, access, or enjoyment of the Services by other authorized users or any third party, or attempt to do so.
attempt to gain, or assist others in attempting to gain, unauthorized access to the Services, other user accounts, or any systems or networks connected to the Services, or bypass or breach any security device or protection used by DESVIX; or
use the Services in any manner that could damage, disable, overburden, or impair the Services or DESVIX’s infrastructure, or in any manner that violates any applicable law or regulation.
6. Term and Termination
6.1. Termination for Material Breach. DESVIX may terminate this Agreement immediately without further notice if Customer materially breaches its obligations under this Agreement and does not remedy such breach within thirty (30) calendar days of receiving written notification to do so from DESVIX.
Termination for Dissolution, Bankruptcy. Subject to applicable law, DESVIX may immediately terminate this Agreement on written notice if Customer is made bankrupt, enters compulsory or voluntary liquidation, ceases to carry on business, or takes or suffers any similar action which the DESVIX reasonably believes means that it may be unable to pay its debts
6.3. Termination for Illegality. DESVIX may terminate this Agreement immediately, upon written notice, if Customer violates (or would violate) applicable law or regulation as a result of the continued relationship of the Parties.
Effect of Termination. Upon the termination of this Agreement:
the Services shall immediately terminate.
in the event of a termination for your breach under Clause 6.1, upon your written request, DESVIX shall make Customer Data available to you for export or download for a period of five (5) continuous days within the first thirty (30) days following the effective date of termination, unless: (a) Customer Data was created and/or used in violation of this Agreement; or (b) prohibited by law or legal order. Thereafter, DESVIX shall have no obligation to maintain or provide Customer Data and DESVIX shall delete Customer Data, except that DESVIX may retain one (1) archival copy of such information solely to ensure compliance with this Agreement or as required by applicable law or regulation.
6.5. Survival. The provisions of Sections and Clauses: 1 (Definitions), 4 (Confidential information), 5 (Restriction), 6.4 (Effect of Termination), 7 (Proprietary Rights), 8 (Data Security), 9 (Warranties and Disclaimers), 10 (Indemnification), 11 (Limitation of Liability) and 15 (Miscellaneous) shall survive any termination or expiration of this Agreement. Expiration or termination of all or part of this Agreement shall not affect the parties’ accrued rights, remedies, obligations, or liabilities.
7. Proprietary Rights
Ownership and Retention of Rights. Customer acknowledges and agrees that the Services, the Software, the Documentation, all underlying technology, algorithms, processes, user interfaces, designs, and any other materials provided or made available by DESVIX (collectively, the “DESVIX Materials“), and all worldwide Intellectual Property Rights related thereto, are the exclusive property of DESVIX or its Associates. This Agreement grants Customer only a limited, non-exclusive, non-transferable, non-sublicensable license to use the Services solely for Customer’s internal business operations in accordance with the terms herein. This is a license, not a sale. All rights not expressly granted to Customer are reserved by DESVIX and its Associates. Title to the DESVIX Solution and Documentation shall not pass from DESVIX to Customer, and the DESVIX Solution, Documentation, and all copies thereof shall remain the sole and exclusive property of DESVIX.
New Features and Improvements.[A3] Customer acknowledges that any new features, functionality, enhancements, modifications, or improvements developed by DESVIX during the term of this Agreement, including those that may be based on Customer’s feedback, suggestions, requests, or comments, shall be the sole and exclusive property of DESVIX. Customer hereby irrevocably assigns to DESVIX all right, title, and interest in and to any such Improvements and any intellectual property rights therein. To the extent any such assignment is not permitted by applicable law, Customer grants DESVIX a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, transferable, and sublicensable license to use and incorporate into the Services any such improvements.
Customer Data. As between the parties, Customer retains all right, title, and interest in and to all data, information, and content submitted by Customer or its personnel to the Services (“Customer Data”). Customer represents and warrants to DESVIX that it has provided all required notices and has obtained all required licenses, permissions, and consents regarding Customer Data for its use within the DESVIX Solution and for DESVIX to provide the Services. Customer grants DESVIX a worldwide, non-exclusive, royalty-free license to use, process, store, display, and transmit Customer Data solely as necessary to provide the Services and perform its obligations under this Agreement. Customer should provide all necessary access to such information as may be reasonably required by DESVIX to provide the DESVIX Solution, including but not limited to Customer Data. DESVIX shall adhere to its Privacy Policy and any applicable data processing addendum with respect to Customer Data.
Statistical Data. Notwithstanding any other provision of this Agreement, to the extent that DESVIX collects or generates data related to Customer’s use of the Services that is used in an aggregated and anonymized form, such that it cannot identify Customer or any individual (“Statistical Data“), Customer hereby grants to DESVIX a non-exclusive, sublicensable, transferable, worldwide, perpetual, irrevocable, royalty-free license to use such Statistical Data solely for DESVIX’s (and its Affiliates’) internal business purposes, including to analyze, assess, and develop the performance of the Services, and for external marketing purposes. When used for external marketing purposes, Statistical Data shall always remain aggregated and anonymized and shall not identify Customer.
8. Data Security
Security Measures. DESVIX shall:
implement and maintain reasonable security measures appropriate to the nature of Customer Data including, without limitation, technical, physical, administrative, and organizational controls designed to maintain the confidentiality, security, and integrity of Customer Data.
implement and maintain industry-standard systems and procedures for detecting, preventing, responding to attacks, intrusions, or other systems failures and regularly tests or otherwise monitors the effectiveness of the safeguards’ key controls, systems, and procedures.
designate an employee or employees to coordinate implementation and maintenance of its security measures; and
identify reasonably foreseeable internal and external risks to the security, confidentiality, and integrity of Customer Data that could result in unauthorized disclosure, misuse, alteration, destruction, or other compromises of such information.
DESVIX shall implement and maintain technical and organizational security measures as detailed in the Data Processing Addendum (Clause 8.2) or, if no DPA is applicable, as set forth in this Clause 8.1.
8.2. Data Processing Addendum. When legally required, the parties agree to comply with the terms of DESVIX’s Data Processing Addendum (presently found at the following URL: DESVIX) as may be periodically updated by DESVIX.
9. Warranties And Disclaimers
9.1. Warranty. DESVIX warrants solely that:
it shall not materially decrease the overall security of the DESVIX Solution.
the DESVIX Solution shall perform substantially in conformance with the Documentation.
it shall maintain all necessary licenses, consents, and permissions for the performance of its obligations under this Agreement.
it uses commercially reasonable efforts consistent with industry standards to regularly scan for and remove any Malware from the DESVIX Solution. “Malware” means software programs designed to damage or do other unwanted actions on a computer system, including viruses, worms, trojan horses, and spyware; and
the Services, where provided on a continuous basis, will be performed in a professional and workmanlike manner consistent with generally accepted industry standards.
Exclusive remedy. If the DESVIX Solution does not conform with the warranties in Clause 9.1., then the Customer’s sole and exclusive remedy, and DESVIX‘s entire liability, shall be, at DESVIX‘s sole discretion and expense, to:
use commercially reasonable efforts to correct the non-conformance, including re-performing the non-conforming Services or correcting the non-conforming Software; or
Exclusions from Warranty. The limited warranties set forth in Clause 9.1. are null and void to the extent the DESVIX Solution:
fails to conform with this warranty as a result of its use with any third-party hardware or software other than as authorized by DESVIX in the Documentation;
is used other than in accordance with its published Documentation or in breach of this Agreement.
has been subjected to misuse, negligence, unauthorized modification, or damage caused by Customer or any third party.
is provided as beta, evaluation, trial, Services or Software
Is used in connection with any high-risk activities where the failure of the DESVIX Solution could lead to death, personal injury, or severe physical or environmental damage (e.g., life support, nuclear facilities, aviation navigation); or
Any non-conformity is not reported to DESVIX within a reasonable time after its discovery, or if an applicable specific warranty period has expired.
Warranty Disclaimer. Except for the express limited warranties set forth in clause 9.1., and to the maximum extent permitted by applicable law, the services and software are provided “as is” and “as available,” with all faults and defects, without warranty of any kind. The DESVIX solution may not be error-free or uninterrupted. DESVIX disclaims all other warranties and conditions not expressly provided herein, whether express, implied, statutory, or otherwise, including, without limitation:
the implied warranties of merchantability, satisfactory quality, fitness for a particular purpose, title, and non-infringement.
warranties arising from a course of dealing, course of performance, usage, or trade practice.
warranties that the services or software will be uninterrupted, error-free, secure, accurate, complete, or that all defects will be corrected; and
warranties that the services or software will meet customer’s requirements or achieve any intended results.
Jurisdictional Limitations. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of certain damages. Accordingly, some of the above limitations and disclaimers may not apply to Customer. In such jurisdictions, DESVIX’s liability will be limited to the greatest extent permitted by law.
10. Indemnification
10.1. Customer shall, at its cost and expense:
defend any unaffiliated third party claim against DESVIX to the extent such claim alleges that Customer’s (or its Authorized Users’): a. use of the DESVIX Solution or Services violates this Agreement or any applicable law; b. acts or omissions constitute negligence, willful misconduct, or fraud; or c. Data has been provided unlawfully or infringes or violates a third party’s Intellectual Property Rights or privacy rights; and
indemnify DESVIX from settlement costs or any damages finally awarded to such third party (including reasonable legal and professional fees and expenses) by a court of competent jurisdiction as a result of such claim.
10.2. DESVIX shall provide Customer with prompt written notice of any such claim and reasonable cooperation in the defense thereof. Customer shall have sole control of the defense and settlement of such claim, provided Customer shall not settle any claim in a manner that requires DESVIX to admit liability or pay money without DESVIX’s prior written consent, which shall not be unreasonably withheld.
11. Limitation of Liability
11.1. To the maximum extent permitted by applicable law, in no event shall DESVIX, its affiliates, or suppliers be liable for any:
Lost profits or business opportunities.
Loss of use, loss of revenue, or loss of goodwill.
Business interruption.
Loss of data, including any costs of recovering or restoring lost data.
Indirect, special, incidental, punitive, or consequential damages.
Damages arising from the use or inability to use the Services, or from any defects, errors, or delays in the Services.
Damages arising from unauthorized access to or alteration of Customer’s transmissions or data.
Damages arising from the acts or omissions of any third parties; or
Damages arising from force majeure events.
These exclusions apply under any theory of liability, whether based on contract, tort (including negligence), strict liability, statute, or otherwise, even if DESVIX or its affiliates, or suppliers have been advised of the possibility of such damages.
Maximal Aggregate Liability. Except for the exclusions to limitation of liability set forth in section 11.3. below, DESVIX’s (and its respective agents’, affiliates’, and suppliers’) total aggregate liability arising out of or related to this Agreement, or the Services shall not, in any event, under any theory of law, exceed the fees paid or payable by Customer for the Services under this Agreement in the twelve (12) months prior to the event giving rise to the liability. This limitation applies regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise.
Exclusions to Limitation of Liability. The limitations of liability are set forth in Sections 11.1. and 11.2. shall not apply to:
damages arising from DESVIX’s gross negligence, willful misconduct, or fraud.
DESVIX’s breach of its confidentiality obligations under this Agreement.
Customer’s payment obligations to DESVIX under this Agreement.
liability for bodily injury or death caused by DESVIX’s negligence.
liability for direct damages to tangible personal property caused by DESVIX’s negligence; or
matters for which liability cannot be limited or excluded under applicable law.
12. Future Functionality and Service Evolution
Customer acknowledges and agrees that Customer’s decision to license, and use the Services is based solely on the currently available functionality and features of the Services and Software as of the effective date of this Agreement. Customer further agrees that its purchase of the Services is not, and shall not be deemed to be, contingent upon, dependent upon, or otherwise conditioned on the delivery of any future functionality, features, or updates, or on any oral, written, or implied comments, roadmaps, product plans, or representations made by DESVIX, its affiliates, licensors or suppliers, whether public or private, regarding future functionality, features, enhancements, or developments. No promise or representation by DESVIX regarding future products, services, enhancements, or features shall be binding on DESVIX or constitute a part of this Agreement.
12.2. DESVIX reserves the right, in its sole discretion, to develop, release, modify, enhance, upgrade, or discontinue any features, functionality, or components of the Services or Software at any time without prior notice. DESVIX shall, however, use commercially reasonable efforts to provide advance notice for any material changes that could adversely impact Customer’s use of the Services or for the discontinuation of any core functionality. Notwithstanding the foregoing, DESVIX warrants that such changes will not materially degrade the core functionality of the Services provided to Customer under this Agreement.
13. Export Compliance and Anti-corruption
Customer warrants that:
neither Customer nor any of its Authorized Users are named on any U.S. government (or other applicable government) denied-party list, or otherwise a debarred, restricted, or prohibited party.
customer will not allow any of the Services or Software to be used by, or for the benefit of, a Designated Person or otherwise in breach of an applicable Sanctions Regime, including use in any U.S. or other applicable embargoed country.
the Services or Software will not be directly or indirectly used, utilized, or deployed: (i) in connection in any way with any nuclear, chemical and biological weapons or missiles capable of delivering them; or (ii) for any military or security use; and
Customer is not a Designated Person, is not owned or controlled by a Designated Person, and does not act directly or indirectly on behalf of a Designated Person.
Customer shall, at all times, comply with all applicable export control laws and regulations in connection with its use of the Services and Software.
Anti-Corruption. Customer warrants that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of DESVIX’s employees or agents (including those of its Affiliates) in connection with this Agreement. Customer further warrants that it will comply with all applicable anti-bribery and anti-corruption laws in connection with this Agreement and its use of the Services. Reasonable gifts and entertainment provided in the ordinary course of business, consistent with applicable laws and company policies, do not violate the above restriction.
Breach and Notification. If Customer learns of any violation or suspected violation of this Section 1, Customer shall use reasonable efforts to promptly notify DESVIX’s legal department at [info@desvix.com]. Customer’s failure to comply with any term of this Section 14 shall constitute a material breach of this Agreement and shall entitle DESVIX to immediately terminate this Agreement without notice, in addition to any other remedy available under applicable law.
14. Miscellaneous
Publicity. Customer agrees that DESVIX may publicly disclose that it is providing the Services and Software to Customer and may use Customer’s name and logo to identify Customer in DESVIX’s promotional and marketing materials, including client lists, website references, and press releases. DESVIX shall ensure that such use does not state or imply that Customer endorses the Services or Software without Customer’s prior written consent. The rights granted under this Section shall survive the termination or expiration of this Agreement.
Force Majeure. Neither party shall be liable under this Agreement for any loss or damage resulting from any delay or non-performance of any part of this Agreement if such non-performance or delay is caused by events or conditions beyond that party’s reasonable control including, without limitation, flood, fire, acts of war, terrorism, earthquake, criminal activity, civil disturbance, court order or other government action, third party performance or non-performance, strikes or work stoppages, provided that such party gives prompt written notice to the other party of such event; however, inability to meet financial obligations is expressly excluded (“Force Majeure Event”).
Order of Precedence. Any ambiguity, conflict, or inconsistency between documents comprising this Agreement shall be resolved in the following order of precedence: (i) this Agreement; (ii) any addendum to this Agreement (e.g., DPA); (iii) any terms incorporated by reference into this Agreement (e.g., AUP, Beta Terms); (iv) Documentation.
Entire Agreements. This Agreement represents the complete and exclusive statement of the agreement between DESVIX and the Customer with respect to the DESVIX solution and supersedes all prior or contemporaneous oral or written communications and arrangements concerning the subject matter contained herein. Any printed or other terms and conditions on a purchase order, statement of work, or similar order document conflicting with, or purporting to add to, the terms and conditions of this Agreement or its exhibits and addenda will be of no force or effect and are hereby rejected.
14.5. Modifications. DESVIX may update or modify this Agreement from time to time. DESVIX will provide notice of such modifications by posting the updated Agreement on its website, by sending an email notification, or by other reasonable means. Customer’s continued use of the Services or Software after the effective date of such modifications constitutes Customer’s acceptance of the modified Agreement. Notwithstanding the foregoing, no amendment or modification specifically negotiated and agreed to by the Parties shall be effective unless in writing and signed by duly authorized representatives of both parties.
14.6. Waiver. No failure or delay in exercising any right, power, or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. No waiver of any provision of this Agreement will be effective unless expressly made in writing and signed by the Party granting the waiver.
14.7. Severability. If any provision of this Agreement is adjudged by any court of competent jurisdiction to be illegal, invalid, or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. The parties shall endeavor in good faith to replace any invalid or unenforceable provision with a valid, legal, and enforceable provision that most closely reflects their original intent.
14.8. Assignment. This Agreement may not be assigned or transferred by either party, whether in whole or in part, voluntarily, by operation of law, or otherwise, without the prior written consent of the other party, which shall not be unreasonably withheld, conditioned, or delayed. Notwithstanding previous sentence, either party may assign this Agreement, without the consent of the other party in connection with a merger, consolidation, acquisition, corporate reorganization, or sale or other disposition of all or substantially all of the assets of a party to which this Agreement relates. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. No assignment shall relieve the assigning party of any of its obligations hereunder that accrued prior to the effective date of the assignment. Any purported assignment violating this Clause shall be null and void and of no force or effect.
14.9. Relationships of the Parties. Each Party is an independent contractor of the other under this Agreement. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency relationship, fiduciary relationship, employment relationship, or any other form of joint enterprise or arrangement related to the sharing of profits and losses. Each Party is solely responsible for its own expenses and personnel in meeting its obligations under this Agreement. Each Party represents and warrants that it has the full power and authority to enter into this Agreement and to carry out the actions contemplated herein.
14.10. Third party rights. This Agreement is made and entered into solely for the benefit of DESVIX and Customer. This Agreement does not create any rights, express or implied, for any third party to enforce any term of this Agreement.
14.11. Notices. Any notice given to a party under or in connection with this Agreement shall be in writing and shall be: (a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); (b) if delivered by hand, at the time the notice is left at the proper address; (c) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting.. This Clause does not apply to the service of any proceedings DESVIX or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purpose of counting days for notice periods, the Business Day on which the notice is deemed received counts as the first day. Notices shall be given in English. “Business Hours” means 09:00 – 17:00 in the country whose laws govern this Agreement on a Business Day.
14.12. Irreparable Harm. Each Party acknowledges that any actual or threatened breach of this Agreement, particularly concerning intellectual property rights, confidentiality obligations, or unauthorized use of the Services, would cause irreparable injury or harm to the other Party for which monetary damages alone would be an inadequate remedy. Therefore, in the event of any such actual or threatened material breach, the non-breaching Party may seek immediate legal protection, including, but not limited to, preliminary measures or claims for omission or removal of a detrimental state, from any court of competent jurisdiction. The remedies provided in the previous sentence shall be in addition to, and not in exclusion of, any other remedies available to the non-breaching Party under applicable law, including claims for damages.
14.13. Governing Law. This Agreement and any dispute or claim (whether contractual or non-contractual, including those arising from its formation, validity, or termination) arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with the laws of the Czech Republic, without regard to its conflict of laws principles and expressly excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
14.14. Jurisdiction. Each Party irrevocably agrees that the courts of the Czech Republic shall have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual, including those arising from its formation, validity, or termination) arising out of or in connection with this Agreement or its subject matter. Each Party hereby waives any objection to jurisdiction or venue in such courts and agrees not to assert any defense based on lack of personal jurisdiction or improper venue.
