This Subscription Agreement (the “Agreement”) governs the purchase, access, and use of the Services by the Client listed on an Order Form with Veronym. In order to use or receive the benefits of any Service, the Client must purchase the applicable Services through an Order Form with Veronym. If Veronym introduces new Services in the future, such Services will be governed by this Agreement, unless Veronym decides otherwise.
Terms and Conditions of the Provision of Veronym Services constitute a part of this Agreement and shall have binding effect to all Purchased Services.
Any terms not defined in this Agreement shall have the same meaning as given to them in the Terms and Conditions of Veronym Services.
If the Client receives access to or use of the Services for evaluation, proof of concept, or interactive demo purposes (the “Evaluation Services”), then the Client may only use the Evaluation Services for its own internal evaluation purposes for a period of up to fourteen (14) days (or a pre-set lower period for interactive demos) from the date of first access to the Evaluation Services (the “Evaluation Period”). The Client and Veronym may, upon mutual written agreement, extend the Evaluation Period. At the end of the Evaluation Period, Veronym may disable access to the Services automatically, without notice to the Client. After evaluation period Client must delete all Software and other components (including Documentation) related to the Evaluation Products, or Client may be invoiced for the then-current list price for the Evaluation Products. If the Client is participating in an interactive demo, the Client agrees and acknowledges that the Client will receive one instance of the Service which is shared with other prospective Veronym clients. For any Evaluation Services, only Sections 4, 6, 9, 10 and 12 of this Agreement shall apply. THE EVALUATION SERVICES ARE PROVIDED “AS IS”, AND TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, VERONYM DISCLAIMS ALL WARRANTIES RELATING TO THE EVALUATION SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
1.1 “Client Data” means all data or information submitted by or on behalf of the Client to the Services.
1.2 “Client User” means an employee, agent, contractor, or other third party authorized by the Client to access or use the Services.
1.3 “Fees” means any fees paid or to be paid for the Services under an Order Form.
1.4 “Intellectual Property Rights” means copyrights (including, without limitation, the exclusive right to use, reproduce, modify, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, use and sell), trade secrets, moral rights, right of publicity, authors’ rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof.
1.5 “Order Form” means an order form, purchase order, or similar ordering document for the Services submitted to, and approved, by Veronym, including via the Services web app.
1.6 “Services” means the subscription of cloud-based services provided by Veronym for the Subscription Term set forth in the Order Form offered to clients in the SaaS model.
1.7 “The device” means a single subscription for a Client’s User.
1.8 “Subscription Term” means the term indicated in the Order Form during which the Services will be delivered by Veronym to the Client.
1.9 “Terms & Conditions” means terms and conditions for provision of purchased Veronym Services governing the use of the Services by the Client.
1.10 “Veronym” means Veronym GmbH, Bachstelzenweg 23, 14195 Berlin, Germany.
2.1 The Client may purchase the Services through an Order Form. All Order Forms shall be governed by Terms & Conditions and this Agreement. For clarity, Veronym will not be obligated to provide any Services to the Client until Veronym receives a valid Order Form. The Client agrees that its purchase of any Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Veronym with respect to any future functionality or features.
3.1 Unless otherwise agreed to in writing by the parties, Fees and payment terms shall be agreed and documented between the Client and Veronym. Rules regarding payments of Fees are specified in the provisions of the Terms & Conditions.
4. INTELLECTUAL PROPERTY; RESTRICTIONS
4.1 Ownership and Intellectual Property Rights
4.1.1 Veronym. All rights and title in and to the Intellectual Property which is used to render the Services, including all Intellectual Property Rights inherent therein, belong exclusively to Veronym and its licensors. No rights are granted to the Client other than as expressly set forth in this Agreement.
4.1.2 The Client agrees that it shall: (i) use the Services solely for its internal business purposes; (ii) only permit access to the Services to the Client’s employees; and (iii) not provide to Veronym any Client Data which constitute personal data or trade secret; and (iv) not access or use the Services from an embargoed nation, including without limitation, Cuba, Iran, North Korea, Syria, Sudan, Crimea Region of Ukraine, or any other country/region that becomes an embargoed nation.
4.1.3 All rights and title in and to the Client Data, belong exclusively to the Client. No rights are granted to Veronym other than as expressly set forth in this Agreement.
4.1.4 The Client is required to strictly adhere to the rules of use of the Services, as set out in this Agreement and the Terms and Conditions.
4.2.1 The Client shall not (and will not allow any third party to): (i) modify, copy, display, republish or create derivative works based on software used for rendering the Services; (ii) reverse engineer any software used for rendering the Services; (iii) access the software used for rendering the Services in order to build a competitive product or service, or copy any ideas, features, functions or graphics of the software used for rendering the Services; (iv) use software used for rendering the Services to send spam or otherwise duplicative or unsolicited messages in violation of any applicable laws and/or regulations; (v) use the software used for rendering the Services to send infringing, obscene, threatening, libelous, or otherwise unlawful material; (vi) use the software used for rendering the Services to access blocked services in violation of any applicable laws and/or regulations; (vii) use the software used for rendering the Services to send or store viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs; (viii) use the software used for rendering the Services to run automated queries to web sites; (ix) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (x) attempt to gain unauthorized access to the software used for rendering the Services or its related systems or networks; (xi) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels used by Veronym to render the Services; (xii) perform penetration or load testing on Services of Veronym’s cloud without the prior written consent of Veronym and agreeing to certain conditions and requirements for such penetration or load testing; (xiii) seek for the Services under an agreement with Veronym’s subcontractors or (xiv) without the express prior written consent of Veronym, conduct any benchmarking or comparative study or analysis involving the Services for any reason or purpose except, to the limited extent absolutely necessary, to determine the suitability of Services to interoperate with Client’s internal systems.
4.2.3 The Client cannot presume other rights to use the Services than are specified in this Agreement and Terms & Conditions.
4.3 Client Guidelines and Responsibilities. The Client agrees and understands that (i) it is responsible for all activity of Client Users and for Client Users’ compliance with this Agreement; (ii) it shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability and appropriateness of all Client Data; (b) prevent unauthorized access to, or use of, the Services, and notify Veronym promptly of any such unauthorized access or use; and (c) comply with all applicable laws and/or regulations in using the Services; (iii) the Services shall not include Client’s connection to the Internet or any equipment or third party licenses necessary for Client to use the Services, which shall be Client’s sole responsibility; (iv) in order for Veronym to provide the SaaS, Client is responsible for forwarding its web traffic or internal traffic to Veronym via valid forwarding mechanisms that allow for automatic fail over (i.e. PAC, IPSEC, GRE tunnels, and/or Veronym App); (v) it is responsible for supplying Veronym with any technical data and other information and authorizations (including Client’s vendors) that Veronym may reasonably request to allow Veronym to provide the Services to Client; and (vi) Veronym shall have the right to (a) use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client relating to the Services (collectively “Feedback”); (b) utilize information collected regarding the malware, spam, botnets, or other threats in the course of Client’s use of the SaaS for the purposes of (1) maintaining, improving and/or analyzing the SaaS, including providing advanced analytics and reporting, (2) complying with all legal or contractual requirements, and/or (3) making malicious or unwanted content anonymously available to its licensors for the purpose of further developing and enhancing the SaaS; and (c) develop and commercialize benchmarks and measures based on aggregated data. The foregoing shall in no way limit Veronym’s confidentiality and security obligations set forth in this Agreement. Veronym acknowledges that all Feedback is provided “As-Is” without warranty of any type.
4.4 Veronym Guidelines and Responsibilities.
4.4.1 Veronym shall not process, use, access, or modify the Client Data except as set forth in this Agreement;
4.4.2 Veronym shall use commercially reasonable measures to maintain the security and integrity of the Services and the Client Data and to provide physical, technical, and organizational safeguards against accidental, unlawful or unauthorized access to or use of, destruction, transfer, disclosure or alteration of Client Data;
4.4.4 Veronym reserves the right to manage bandwidth or route traffic across the Internet in a commercially optimal way, provided such actions do not compromise Veronym’s obligations under this Agreement; and
4.4.5 Veronym reserves the right to suspend Client’s access to Services in the event Client’s use of the Services represents an imminent threat to Veronym’s network, or if so directed by a court or competent authority. In such cases, Veronym will (i) suspend such Services only to the extent reasonably necessary to prevent any harm to Veronym’s network (for example, blocking offending source IP addresses); (ii) use reasonable efforts to promptly contact the Client and give the Client the opportunity to promptly change the configuration of its server(s) accordingly and/or work with the Client to promptly resolve the issues causing the suspension of such Services; and (iii) reinstate any suspended the Services immediately after any issue is abated.
5. DISCLAIMER OF WARRANTIES
5.1 Disclaimer of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTY WHATSOEVER. VERONYM EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ALL WARRANTIES, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE. VERONYM ALSO MAKES NO WARRANTY REGARDING NON INTERRUPTION OF USE OR FREEDOM FROM BUGS, AND MAKES NO WARRANTY THAT SERVICES WILL BE ERROR-FREE.
6. CONFIDENTIAL INFORMATION
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Services, Veronym’s security information and reports, and each party’s respective business and marketing plans, technology and technical information, product designs, and business processes. The obligations in this Section shall not apply to any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality; (iii) was independently developed by the Receiving Party without the use of or reference to the Confidential Information of the Disclosing Party; or (iv) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality. Identification of the Client as a customer of Veronym under the Terms and Conditions, shall not be treated as Confidential Information.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Either party may disclose Confidential Information to its personnel and its auditors who are subject to the same confidentiality obligations and may disclose Confidential Information to its attorneys and accountants who are either subject to professional obligations of confidentiality or have agreed to be bound by confidentiality obligations at least as protective as those set out herein.
6.3 Term of confidentiality obligation. The Receiving Party undertakes to maintain confidentiality of any Confidential Information of the Disclosing Party, about which became aware in the course of entering into or executing this Agreement, and which has been stated confidential, secret or other similar by the Disclosing Party, both during the Subscription Term, as well as within 3 years after the termination or expiration of the Agreement.
6.4 Protection. Receiving Party will use at least the same level of care to prevent unauthorized use of the Confidential Information as it uses for its own confidential and proprietary information of like kind, but in no event less than a reasonable standard of care.
6.5 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
6.7 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, or if the Receiving Party is compelled to disclose (or is likely to become compelled to disclose) any Confidential Information of the Disclosing Party pursuant to Section 6.6, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts or seek a protective order regarding such acts.
7. TERM AND TERMINATION
7.1 Agreement Term. This Agreement shall continue in effect for the Subscription Term.
7.2 Order Term. The term of Client’s subscription to the Services will begin on the start date set forth in an Order Form and will continue for the period of time stated in the Order Form. Prolongation of the Subscription Term shall take place in accordance with the Terms and Conditions.
7.3 Termination. Veronym has the right to terminate this Agreement – in writing – with immediate effect in any of the following cases:
- the Client has breached the provisions of the Agreement or/and Terms & Conditions in a gross manner;
- the Client has infringed the copyright to software used for rendering the Services;
- the Client has made the Services available to an unauthorized person,
- the Client is delayed with the payment of Fees for the Services, and the delay period exceeds 30 days.
7.4 The Client has the right to terminate the Agreement – in writing – with immediate effect if Veronym, contrary to the provisions of the Agreement or/and Terms & Conditions, does not provide the Services and the period of non-performance exceeds 7 business days. Termination of the Agreement in this case should be preceded by a request from the Client to provide access to the Services and to set an additional deadline for this purpose, not shorter than 4 days.
7.7 Effect of Termination. The following provisions shall survive the termination of this Agreement and all Order Forms: Section 3 (Payment), Section 4 (Intellectual Property; Restrictions), Section 5 (Disclaimer of Warranties), Section 6 (Confidential Information), Section 7.4 (Effect of Termination), Section 8 (Indemnity), Section 9 (Limitation of Liability), Section 10 (Personal Data), Section 11 (General Provisions).
8.1 Veronym will indemnify and hold the Client harmless from and against any claim against the Client by reason of the Client’s use of the Services as permitted hereunder, brought by a third party alleging that the software used to render the Services infringes a third party’s valid international patent or copyrights. Veronym shall, at its expense, defend such claim and pay damages finally awarded against the Client in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Veronym for such defense. If the software used for rendering the Services, or parts thereof, become, or in Veronym’s opinion may become, the subject of an infringement claim, Veronym may, at its option: (a) procure for the Client the right to continue using the Services as set forth herein; (b) replace or modify the software used to render the Services to make it non-infringing; or (c) if options (a) or (b) are not commercially and reasonably practicable as determined by Veronym, terminate this Agreement and the applicable Order Form and refund the Client, on a pro-rated basis, any pre-paid Fees for the corresponding unused portion of the Subscription Term. Veronym will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by the Client; (ii) modification of the software used to render the Service by anyone other than Veronym; or (iii) the combination, operation, or use of the software used to render the Service with other hardware or software not provided by Veronym where the software used to render the Services would not by itself be infringing. THIS SECTION 8.1 STATES VERONYM’S ENTIRE LIABILITY AND THE CLIENT’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE USED TO RENDER THE SERVICES, PROVIDED HOWEVER THAT SECTION 9 (LIMITATION OF LIABILITY) SHALL BE APPLICABLE TO ANY OBLIGATIONS OF VERONYM HEREUNDER.
8.2 The Client will indemnify and hold Veronym harmless against any claim brought by a third party against Veronym arising from or related to the Client’s violation of Section 4.2 of this Agreement.
8.3 The indemnification obligations in this Section shall be subject to the indemnified party: (i) promptly notifying the indemnifying party in writing upon receiving notice of any threat or claim of such action; (ii) giving the indemnifying party exclusive control and authority over the defense and/or settlement of such claim (provided any such settlement unconditionally releases the indemnified party of all liability); and (iii) providing reasonable assistance requested by the indemnifying party, at the indemnifying party’s expense.
9. LIMITATION OF LIABILITY
9.1 As far as it is permissible under the applicable law Veronym’s liability for any consequences of using the Services, including damages resulting from the use or impossibility of its use, in particular for damages resulting from errors or other defects of the Services, is excluded. The above exclusion of liability also applies after the termination or expiration of this Agreement, regardless of the mode in which it was terminated or expired.
9.2 The limitation of Veronym’s liability shall not apply, subject in particular to the provisions of article 473 § 2 of the Civil Code, if the damage was caused intentionally by Veronym.
10. PERSONAL DATA
10.1 The Client represents and warrants that it does not reveal nor provide any personal data as defined in the Regulation of the European Parliament and of the Council (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) to Veronym. The Client Data revealed to Veronym shall not include any personal data. If any of the data provided to Veronym by the Client constitute the personal data, the Client shall immediately inform Veronym about it and the Parties shall enter into a data processing agreement.
11. GENERAL PROVISIONS
11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
11.2 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
12.3 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld).
11.4 Governing Law. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of Germany, without giving effect to its conflicts of laws rules.
11.5 Entire Agreement. This Agreement, including all Order Forms and the Terms and Conditions, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties are not relying and have not relied on any representations or warranties whatsoever regarding the subject matter of this Agreement, express or implied, except for the representations and warranties set forth in this Agreement. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. No terms or conditions set forth on any purchase order, preprinted form or other document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void.