IMPORTANT – READ THIS APICBASE SERVICE AGREEMENT (THIS “AGREEMENT”) CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING THE “I ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH AN ORDERING DOCUMENT, QUOTE OR INVOICE THAT INCORPORATES OR REFERS TO THIS AGREEMENT (THE “ORDERING DOCUMENT”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY.
1. AGREEMENT DEFINITIONS
You and your: the individual or entity that has ordered software as a service from APICBASE NV (“APICBASE”) or an authorized distributor by executing the ordering document that accompanies and incorporates this APICBASE software as a service agreement (collectively, the “agreement”).
– Services: these include the APICBASE Software and Hardware.
– Software: the online and device based software applications provided by APICBASE as part of the Services.
– Hardware: this includes the APICBASE studio and/or Birdy
– Authorized Users: those employees, agents and independent contractors of the Customer who are authorized by the Customer to use the Services and the Documentation in accordance with this agreement.
– Studio Account: This is the account which is linked to the studio
– Program documentation: the program user manual as well as any other materials provided by APICBASE as part of the services.
– APICBASE programs: the software products owned or distributed by APICBASE to which APICBASE grants you access as part of the services, including program documentation, and any program updates provided as part of the services.
– Users: those individuals authorized by you or on your behalf to use the services, as defined in the ordering document.
– Your data: the data provided by you that resides in your services environment.
– Ordering document: the ordering document or quote signed by the parties that accompanies and incorporates this software as a service agreement, including the services policies and any other document referenced or incorporated into the ordering document.
– Business day: any day which is not a Saturday, Sunday or public Holiday in Belgium.
– Normal Business Hours: 9:00 am to 5:00 pm CET, every business day.
2. APPLICABILITY OF AGREEMENT
This service agreement is valid for the ordering document, which this agreement accompanies.
3. RIGHTS GRANTED
Upon APICBASE’s acceptance of your order and for the duration of the services term defined in the ordering document, you have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the services solely for your internal business operations and subject to the terms of the agreement. You are responsible for your users’ compliance with the agreement. The services are provided as described in, and subject to, the services policies referenced in the ordering document.
You acknowledge that APICBASE has no delivery obligation in regards to the software and will not ship copies of the APICBASE programs to you as part of the services. You agree that you do not acquire under the agreement any license to use the APICBASE programs specified in the ordering document in excess of the scope and/or duration of the services. Upon the end of the agreement or the services thereunder, your right to access or use the APICBASE programs specified in the ordering document and the services shall terminate.
4. OWNERSHIP OF DATA AND RESTRICTIONS
You retain the right to your images and this unconditionally and at any time. Elements stored by you in the online database, for example, but not exclusively, images, recipes, annotations, dishes, etc. remain your property at any time and unconditionally, unless: (1) when expressly described that the information will be public or (2) if the customer decides to make the data public himself through the public area of APICbase.com. The customer can make all images, and other data pubic on APICbase.com, except when the use of the images by the customer brings damage to the supplier, in whichever way. The customer recognizes the right of the supplier that the supplier subsequently can utilize the images from the archive made public by the customer on APICbase.com, in whichever way, unconditionally and in the manner chosen by the supplier, without any compensation to the customer.
APICBASE or its licensors retain all ownership and intellectual property rights to the services, APICBASE software and APICBASE hardware. APICBASE retains all ownership and intellectual property rights to anything developed and delivered under the agreement. Third party technology that may be appropriate or necessary for use with some APICBASE programs is specified in the program documentation or ordering document as applicable. Your right to use such third party technology is governed by the terms of the third party technology license agreement specified by APICBASE and not under the agreement. You may not remove or modify any program markings or any notice of APICBASE’s or its licensors’ proprietary rights;
5. USERS AND STUDIO ACCOUNTS
5.1 Subject to you purchasing the Software and Hardware as set out in the Ordering Document, the restrictions set out in this clause 5 and the other terms and conditions of this agreement, APICBASE hereby grants you a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for your internal business operations.
5.2 In relation to Studio and Studio Accounts, you undertake:
– A studio Account is exclusively linked to the APICBASE Studio hardware;
– A studio is limited to one studio account;
– The use of a single studio is limited to the geographic location it was ordered for, unless otherwise specified in the ordering document;
– It shall permit APICBASE to audit the Services in order to establish the name and password of each Studio Account and the geographic use of the Studio;
– If any of the audits referred to in clause 5.2 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to APICBASE’s other rights you shall promptly disable such passwords and APICBASE shall not issue any new passwords to any such individual; and
– If any of the audits referred to in clause 5.2 reveal that you have underpaid Subscription Fees to APICBASE, you shall pay to APICBASE an amount equal to such underpayment as calculated in accordance with the prices stipulated by APICBASE within 10 Business Days of the date of the relevant audit.
– Disable studio account and can bill you for the extra studio’s
5.3 In relation to the Authorised Users, you undertake that:
– The maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User subscriptions it has purchased from time to time;
– It will not allow or suffer any User subscriptions to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
– Each Authorised User shall keep a secure password for his use of the Services and Documentation, that appropriate password policies (including frequency of change) will be applied and that each Authorised User shall keep his password confidential;
– It shall permit APICBASE to audit the Services in order to establish the name and password of each Authorised User and the number of Authorised Devices. Such audit may be conducted no more than once per year, at APICBASE’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with your normal conduct of business;
– If any of the audits referred to in clause 5.3 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to APICBASE’s other rights you shall promptly disable such passwords and APICBASE shall not issue any new passwords to any such individual; and
– If any of the audits referred to in clause 5.3 reveal that you have underpaid Subscription Fees to APICBASE, you shall pay to APICBASE an amount equal to such underpayment as calculated in accordance with the prices stipulated by APICBASE within 10 Business Days of the date of the relevant audit.
5.4 You shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that: (a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;(b) facilitates illegal activity;(c) depicts sexually explicit images;(d) promotes unlawful violence;(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activity; or(f) causes damage or injury to any person or property;
And APICBASE reserves the right, without liability to you, to disable your access to any material that breaches the provisions of this clause.
5.5 You shall not:
– Except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
– and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Hardware in any form or media or by any means; or
– Attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software and/or Hardware; or
– access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
– use the Services and/or Documentation to provide a bureau service to third parties, unless otherwise specifies in the Ordering Document; or
– license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
– attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 5.
– You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify APICBASE.
The rights provided under this clause 5 are granted to you only, and shall not be considered granted to any subsidiary or holding company of you unless expressly authorised within the Ordering Document.
6. ADDITIONAL USER / DEVICE SUBSCRIPTIONS
You may, from time to time during any Subscription Term, purchase additional User Subscriptions or Studios in excess of the number originally purchased and APICBASE shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement.
If APICBASE approves your request to purchase additional User Subscriptions or studios, you shall, within 30 days of the date of APICBASE’s invoice, pay to APICBASE the relevant fees for such additional User Subscriptions.
APICBASE shall, during the Subscription Term, provide the Services and make available the Documentation to you on and subject to the terms of this agreement.
APICBASE shall use commercially reasonable endeavours to make the Services available 99% of the time, except for:
planned maintenance carried out during the maintenance window of Saturdays and Sundays; and
unscheduled maintenance performed outside Normal Business Hours, provided that APICBASE has used reasonable endeavours to give you reasonable notice in advance.
APICBASE will, as part of the Services and at no additional cost to you, provide you with APICBASE’s standard customer support services during Normal Business Hours in accordance with APICBASE’s Support Services Policy in effect at the time that the Services are provided. APICBASE may amend the Support Services Policy in its sole and absolute discretion from time to time. You may purchase enhanced support services separately at APICBASE then current rates.
8. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES
APICBASE warrants that the services will perform in all material respects in accordance with the services policies referenced in the ordering document. If the services provided to you for any given month during the services term were not performed as warranted, you must provide written notice to APICBASE as specified in the ordering document no later than five business days after the last day of that particular month or within such other period stated in the ordering document.
APICBASE DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT APICBASE WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT APICBASE DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. APICBASE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
FOR ANY BREACH OF THE ABOVE WARRANTIES, APICBASE WILL REMIT A SERVICES FEE CREDIT TO YOU CALCULATED AT FIVE PERCENT (5%) OF NET MONTHLY FEES FOR THE APPLICABLE SERVICES FOR THE MONTH IN WHICH THE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO APICBASE, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMEDY, AND APICBASE’S SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THE AGREEMENT.
TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.
APICBASE guarantees the supplied hardware are conforming the specifications and functionalities described in the manual. Although the supplier has developed the product with the utmost effort, the supplier does not guarantee that the supplied hardware and software is error free. The supplier guarantees the availability of maintenance, spare parts, necessary accessories and updates of the program during a year after the delivery date. During the warranty period of one year all repairs and interventions needed to insure the operation of the delivered goods in accordance with the product description will be free of charge.
The warranty does not cover:
— Repairs caused by improper or non-permitted use;
— Repairs caused by an accident, fire, natural disaster, electrical interference and in general all causes strange to the goods delivered;
— New versions or extensions to the hardware or software
9. TRIAL USE OF THE SERVICES
If specified in the ordering document, you may order certain services for trial, nonproduction purposes subject to the terms and conditions of the agreement. Services acquired for trial purposes are provided “as is” and APICBASE does not offer any warranties for such services.
10. SUPPORT SERVICES
Support services provided under the agreement are specified in the services policies.
11. END OF AGREEMENT
Services provided under agreement shall be provided for the period defined in the ordering document unless earlier terminated in accordance with the agreement. All contracts are automatically renewed according to the renewal terms defined in the contract. Either party will have the right to terminate the renewal of a contract by giving at least 90 days’ notice in writing to the other party to expire at the end of the initial period.
The term of the services and any renewal years are collectively defined as the “services term.” At the end of the services term, all rights to access or use the services, including the APICBASE programs listed in the ordering document, shall end. If you leased the hardware, you are obliged to sent the Hardware back within 30 days of the termination of the contract, if APICBASE has not received the hardware within 30 days of the termination of the contract, APICBASE may charge you 30% of the monthly fee for the Hardware as described in the ordering document.
If either of us breaches a material term of the agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable ordering document under which the breach occurred. If APICBASE ends the ordering document as specified in the preceding sentence, you must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the services ordered under the agreement plus related taxes and expenses. If APICBASE ends the services under the Indemnification section, you must pay within 30 days all amounts remaining unpaid for services plus related taxes and expenses. The nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under the agreement, you may not use the services ordered. You further agree that if you have used an APICBASE Financing Division contract to pay for the fees due under an order and you are in default under that contract, you may not use the services that are subject to such contract.
In addition, APICBASE may immediately suspend your password, account, and access to or use of the services (i) if you fail to pay APICBASE as required under the agreement and do not cure within the first thirty days of the 30 day cure period, or (ii) if you violate any provision within sections C, D, N or R of this software as a service agreement. APICBASE may terminate the services hereunder if any of the foregoing is not cured within 30 days after APICBASE’s initial notice thereof. Any suspension by APICBASE of the services under this paragraph shall not excuse you from your obligation to make payment(s) under the agreement.
At your request, and for a period of up to 60 days after the termination of the applicable ordering document, APICBASE may permit you to access the services solely to the extent necessary for you to retrieve a file of your data in the services environment.
You agree and acknowledge that APICBASE has no obligation to retain your data and that your data may be irretrievably deleted after 60 days following the termination of the ordering document.
Provisions that survive termination or expiration of the agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.
12. FEES AND TAXES
You agree to pay for all services ordered as set forth in the applicable ordering document. All fees due under the agreement are non-cancellable and the sums paid non-refundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that APICBASE must pay based on the services you ordered, except for taxes based on APICBASE’s income. You will reimburse APICBASE for reasonable expenses related to providing any on-site portion of the services. Fees for services listed in an ordering document are exclusive of taxes, delivery charges and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice.
You shall on the Effective Date provide to APICBASE approved purchase order information acceptable to APICBASE and any other relevant valid, up-to-date and complete contact and billing details and APICBASE shall invoice you on a recurring basis as stipulated in the Ordering Document and you shall pay each invoice prior to the date of the commencement of the applicable payment period.
If APICBASE has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of APICBASE:
(a) APICBASE may, without liability to you, disable your password, account and access to all or part of the Services and APICBASE shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and (b) interest shall accrue on such due amounts at an annual rate equal to 3% over the then current base lending rate of Crelan bank at the date the relevant invoice was issued (or the maximum permitted by law), commencing on the due date and continuing until fully paid, whether before or after judgment and APICBASE shall be entitled to reclaim associated debt recovery costs. All amounts and fees stated or referred to in this agreement: (a) shall be payable in euro; (b) are non-cancellable and non-refundable; (c) are exclusive of value added tax, which shall be added to APICBASE’sinvoice(s) at the appropriate rate. (d) paid within the term specified in the ordering document
APICBASE shall be entitled to increase the Subscription Fees and the fees payable in respect of any additional User Subscriptions or Studios purchased upon 90 days’ prior notice to you.
You will reimburse APICBASE for reasonable expenses related to providing any on-site portion of the services. Fees for services listed in an ordering document are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice.
You agree that you have not relied on the future availability of any services, programs or updates in entering into the payment obligations in the ordering document; however, the preceding does not relieve APICBASE of its obligation to deliver services that you have ordered per the terms of the agreement.
By virtue of the agreement, the parties may have access to information that is confidential to one another (“confidential information”). The parties each agree to disclose only information that is required for the performance of obligations under the agreement. Confidential information shall be limited to the terms and pricing under the agreement, your data residing in the services environment, and all information clearly identified as confidential at the time of disclosure.
A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
We each agree to hold each other’s confidential information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the agreement. APICBASE will protect the confidentiality of your data residing in the services environment in accordance with the APICBASE security practices specified in the services policies referenced in the ordering document. Nothing shall prevent either party from disclosing the terms or pricing under the agreement in any legal proceeding arising from or in connection with the agreement or from disclosing the confidential information to a governmental entity as required by law.
14. ENTIRE AGREEMENT
You agree that the agreement (including the information which is incorporated into the agreement by written reference (including reference to information contained in a URL or referenced policy), is the complete agreement for the services ordered by you, and that the agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of the agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the agreement. It is expressly agreed that the terms of the agreement, including any APICBASE ordering document, shall supersede the terms in any purchase order or other non-APICBASE document and no terms included in any such purchase order or other non-APICBASE document shall apply to the services ordered. The agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through the APICBASE website by authorized representatives of you and of APICBASE.
15. LIMITATION OF LIABILITY
APICBASE shall not be liable for the following losses suffered by you arising out of or in connection with this agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, even if such losses result from APICBASE’s deliberate personal repudiatory breach of this agreement: (i) loss of income; (ii) loss of business profits or contracts; (iii) business interruption; (iv) loss of the use of money or anticipated savings; (v) loss of information; (vi) loss of opportunity, goodwill or reputation; (vii) loss of, damage to or corruption of data; or (viii) any indirect or consequential loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise; and
APICBASE’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS SOFTWARE AS A SERVICE AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO APICBASE FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST APICBASE SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.
APICBASE shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for the performance of any third party products or services which are used in the performance of the Services.
Export laws and regulations of Belgium and any other relevant local export laws and regulations apply to the services. You agree that such export control laws govern your use of the services (including technical data) and any services deliverables provided under this agreement, and you agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). You agree that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.
APICBASE is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance.
You shall obtain at your sole expense any rights and consents from third parties necessary for APICBASE and its subcontractors to perform the services under the agreement.
The agreement is governed by the substantive and procedural laws of Belgium and you and APICBASE agree to submit to the exclusive jurisdiction of, and venue in, the courts of the Rechtbank van Koophandel, Antwerpen in any dispute arising out of or relating to the agreement.
If you have a dispute with APICBASE or if you wish to provide a notice under the Indemnification section of this software as a service agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: APICBASE NV, Deuzeldlaan 177/2, 2018 Antwerpen, Belgium, Attention: General Counsel, Legal Department. APICBASE may give notice applicable to APICBASE’s software as a service customer base by means of a general notice on the APICBASE website for the services, and notices specific to you by electronic mail to your e-mail address on record in APICBASE’s account information or by written communication sent by first class mail or pre-paid post to your address on record in APICBASE’s account information.
You may not assign the agreement or give or transfer the services or an interest in them to another individual or entity.
Except for actions for nonpayment or breach of APICBASE’s proprietary rights, no action, regardless of form, arising out of or relating to the agreement may be brought by either party more than two years after the cause of action has accrued.
APICBASE may audit your use of the services. You agree to cooperate with APICBASE’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay within 30 days of written notification any fees applicable to your use of the services in excess of your rights. If you do not pay, APICBASE can end your services and/or the agreement. You agree that APICBASE shall not be responsible for any of your costs incurred in cooperating with the audit.
18. FORCE MAJEURE
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the services.
19. YOUR DATA
APICBASE reserves the right to provide the services from locations, and/or through use of subcontractors, worldwide. You agree to provide any notices and obtain any consents related to your use of the services and APICBASE’s provision of the services, including those related to the collection, use, processing, transfer and disclosure of personal information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all of your data.
20. RESTRICTIONS ON USE OF THE SERVICES
You agree not to use or permit use of the services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to APICBASE under the agreement, APICBASE reserves the right to remove or disable access to any material that violates the foregoing restrictions. APICBASE shall have no liability to you in the event that APICBASE takes such action. You agree to defend and indemnify APICBASE against any claim arising out of a violation of your obligations under this section.
21. SERVICES TOOLS
APICBASE may use tools, scripts, software, and utilities (collectively, the “tools”) to monitor and administer the services and to help resolve your APICBASE service requests. The tools will not collect, report or store any of your data residing in the service production environment, except as necessary to troubleshoot service requests or other problems in the service. Data collected by the tools (excluding production data) may also be used to assist in managing APICBASE’s product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the tools, and (b) you will not use or restore the tools from any tape backup at any time following termination of the agreement.
If APICBASE provides you with access to or use of any tools in connection with the services, your right to use such tools is governed by the license terms that APICBASE specifies for such tools; however, if APICBASE does not specify license terms for such tools, you shall have a non-transferable, non-exclusive, limited right to use such tools solely to facilitate your administration and monitoring of your services environment, subject to the terms of the agreement. Any such tools are provided by APICBASE on an “as is” basis and APICBASE does not provide technical support or offer any warranties for such tools. Your right to use such tools will terminate upon the earlier of APICBASE’s notice (which may be through posting on https://support.APICbase.comor such other URL designated by APICBASE), the end of the services term, or the date that the license to use such tools ends under the license terms specified for such tools.
22. STATISTICAL INFORMATION
APICBASE may compile statistical information related to the performance of the services, and may make such information publicly available, provided that such information does not incorporate your data and/or identify your confidential information or include your company’s name. APICBASE retains all intellectual property rights in such information.
23. THIRD PARTY WEB SITES, CONTENT, PRODUCTS AND SERVICES
The services may enable you to add links to Web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. APICBASE is not responsible for any third party Web sites or third party content provided on or through the services and you bear all risks associated with the access and use of such Web sites and third party content, products and services.
24. CUSTOMER REFERENCE
You agree (i) that APICBASE may identify you as a recipient of services and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by APICBASE on APICbase.com for promotional purposes.
25. DELIVERY DATE AND INSTALLATION
The delivery date will be stipulated on the ordering document.
26. RE-SALE AND/OR TRANSFER OF THE LICENSE
The customer agrees that he will not re-sell the hardware nor transfer the APICBASE Manager subscription to a third party.
26. REVISION HISTORY
- Last Revision: 5 July 2017
- Original Document: 6 April 2014
SUPPORT SERVICES POLICY
1. Provision of Support Services
If agreed upon in the ordering document, APICBASE shall provide a telephone based Help-Desk for technical support for users of the Services, which shall be available during Normal Business Hours. This may include: helpdesk telephone support and updates to Services; on site cover during office hours charged on a per visit basis at standard daily rates plus expenses, as defined in the ordering document.
Upon receipt of a support request from you, APICBASE shall carry out diagnosis remotely by telephone or remote access link making all findings of such diagnosis available to you. Where remote diagnosis fails to resolve the fault, APICBASE shall take all reasonable efforts to provide on-site assistance to resume normal working, subject to acceptance of the costs as outlined in clause 2.0 of this schedule.
Where calls relate to the interface to other software packages or environments, or similar issues where the fault cannot be diagnosed as being clearly caused by the supported Services, APICBASE will use its best endeavors to assist you in finding a resolution to the problem, subject to the acceptance by you of the additional charges to be levied, as outlined in clause 2.0 of this Appendix.
2. Additional Charges
APICBASE will levy additional charges in the following cases as outlined below (where “Out of Hours” is defined as all times other than Normal Business Hours):
Telephone/Remote Diagnostic management of Out-of-Hours incidents relating to the APICBASE Services at a initial charge of €100 plus €50 per hour or part hour spent responding to the incident.
Telephone/Remote Diagnostic management of Normal Business Hours incidents relating to non-APICBASE products or services at an initial charge of €50 plus €50 per hour or part hour spent responding to the incident.
Telephone/Remote Diagnostic management of Out-of Hours incidents relating to non-APICBASE products or services at an initial charge of €100 plus €100 per hour or part hour spent responding to the incident.
On-site Normal Business Hours support will be charged at the Standard Daily Rate, plus expenses. Out of Hours On-Site support will be negotiated on a case by case basis.
Incidents relating to the training needs of inexperienced operators will be charged at an initial charge of €50 plus €50 per hour or part hour responding to the request during Normal Business Hours and €100 Plus €100/Hour at other times.
3. APICBASE Access
You must provide APICBASE with remote access to hardware and software together with access to such of your information and facilities, which may be necessary to assist in effecting the provision of the support and Services.
4. User Training
You must ensure that all users of the Services are trained to an acceptable standard of competence, and if high levels of support calls are received from inexperienced operators APICBASE may make additional charges as outlined in clause 2 of this schedule.
5. APICBASE’s Response and Obligations for Support
APICBASE will use reasonable commercial endeavors to respond to calls for support promptly: we aim to respond to all faults as soon as possible. Where required, a site visit will be arranged. No guarantee or warranty is given of any times for response or that APICBASE will be able to rectify the problem within a particular time scale. APICBASE’s obligation to provide the Services is conditional upon the proper use of the Services and APICBASE shall be under no obligation to provide the Services where failure is due to any of the following:
Improper use, neglect or accident in respect of the Services;
Modifications, alterations or repairs or error correction carried out to the Servicesother than by APICBASE or with APICBASE’s prior written approval;
Any failure due to electricity supply, inadequate cooling, fire or flood or natural disasters;
Combination of the Services with any equipment or software programs not supplied or previously approved by APICBASE.
In case of the above mentioned, a quote will be made to rectify the problem.
APICBASE may vary all or part of these terms and conditions by giving not less than ninety (90) days’ written notice to you.
APICBASE operates an online ordering system for existing customers and you hereby agree to make use of the online ordering system such that orders managed using the online system are subject to the terms of this agreement.
In the event that you change the Software licensed from APICBASE, the changes to support charges will take immediate effect from the date on which license key access is provided unless otherwise stated in the Ordering Document related to the additional Software.