Provided by the CUSTOMER
The CUSTOMER must, at his/her own expense, answer any questions and claims that may be raised by the Users or any third parties in relation to the use of the Services by the CUSTOMER or the Users. The CUSTOMER shall make reasonable efforts in order to solve for itself the incidents that in the matter of technical support could be notified, before forwarding them to DIPROTECH in accordance with what is established in “Provided by DIPROTECH” Clause.
Provided by DIPROTECH
If the CUSTOMER is unable to solve an incident in accordance with the provisions of Clause “Provided by Customer”, he/her may submit it to DIPROTECH in accordance with the terms associated with the subscribed Services in the corresponding Purchase Order.
SUSPENSION Of the User Accounts by DIPROTECH
If DIPROTECH warns that a User Account is being used in breach of this AGREEMENT, DIPROTECH may specifically request the CUSTOMER to suspend the corresponding User Account. If the CUSTOMER does not suspend a certain User Account at the request of DIPROTECH, DIPROTECH may suspend it by itself. Such suspension will continue until the User in question corrects the breach that would have given rise to it.
Notwithstanding the foregoing, in the event of any Security Emergency, DIPROTECH may automatically suspend the impacted User Accounts. The Suspension will have the minimum entity and the shortest duration necessary, according to DIPROTECH, to prevent or solve the Security Emergency. In case DIPROTECH Suspends any User Account(s), for any reason, without previous notification to the CUSTOMER, at the request of the latter, DIPROTECH will provide to the CUSTOMER the reasons that have motivated the Suspension, as soon as reasonably practicable.
The recipient of any Confidential Information may not disclose such information, except to Group Companies, Subcontractors, Employees or Professional Advisers who need to know it and who have agreed in writing (or in the case of professional advisers, who are obliged to do so in accordance with the applicable regulations) to maintain the confidentiality of the same. The recipient shall ensure that such persons and entities use such Confidential Information only to exercise rights and to fulfill obligations under this Agreement and shall take all reasonable measures to protect it. Likewise, the recipient may disclose the Confidential Information if required by law, after reasonable notice, if permitted by law, the person or entity that disclosed it. Said notification must be made sufficiently in advance for the discloser to request a confidential treatment, a protection order or other similar solutions prior to disclosure.
The Confidential Information does not include information:
a) that is already known by the recipient,
b) that it is made public without responsibility of the recipient, c) that the recipient generates independently or d) that a third party transmits it legitimately.
INTELLECTUAL PROPERTY RIGHTS, BRAND ELEMENTS, ADVERTISING
Intellectual Property Rights
Except as expressly provided herein, this AGREEMENT does not guarantee to any party any right, title or interest in the Intellectual Property Rights of the other party or its licensors. As agreed between the parties, the CUSTOMER is the owner of all Intellectual Property Rights corresponding to the CUSTOMER Data and DIPROTECH is the owner of all Intellectual Property Rights corresponding to the Services and to the thehtings.io Platform and related materials.
In particular, the CUSTOMER hereby acknowledges and agrees that the thehtings.io Platform, including the thehtings.io Software and any other software, hardware and associated documentation has been created by DIPROTECH, who shall retain all intellectual, industrial or other rights over the same, which may not be subject to further modification, copying, alteration, reproduction, adaptation or translation by the CUSTOMER.
The structure, characteristics, codes, working methods, information systems, development tools, know-how, methodologies, processes, technologies or algorithms of the thehtings.io Platform are owned by DIPROTECH, or its suppliers, having been, in the latter case, subject to license or assignment by them, and are protected by Spanish or international standards of intellectual and industrial property, and may not be subject to further modification, copying, alteration, reproduction, adaptation or translation by the CUSTOMER .
Consequently, any use by the CUSTOMER of the thehtings.io Platform, its Services or Associated Materials that is made without the authorization of DIPROTECH is strictly prohibited, including its exploitation, reproduction, dissemination, transformation, distribution, transmission by any means, subsequent publication, exhibition, public communication or total or partial representation, which, if they occur, will constitute infractions of DIPROTECHs intellectual or industrial property rights, sanctioned by current legislation.
Neither party may display or use the Distinctive Signs of the other party, except as expressly permitted in this AGREEMENT, without the prior written consent of the other party. DIPROTECH will only be able to display those Distinctive Signs of the CUSTOMER that the CUSTOMER would have authorized (such authorization is understood granted when CUSTOMER uploads its Distinctive Signs to the Services), and only in those sections of the Service pages expressly designated for the purpose. The CUSTOMER may specify the nature of this use through the thehtings.io Panel. If the CUSTOMER wants to display the DIPROTECH Distinctive Signs in connection with the Services, the CUSTOMER must comply with the Brand Guidelines. DIPROTECH may include the Distinctive Signs of DIPROTECH on the Service pages to indicate its status as a provider of the Services.
Limitations of Distinctive Signs
Any goodwill resulting from the use by either party of the Distinctive Signs of the other shall belong to that other party. Either party may revoke its consent to the use by the other party of its Distinctive Signs under this AGREEMENT, by written notice thereof, at any time in due time.
The CUSTOMER agrees that DIPROTECH may include the CUSTOMER name or his/her brand elements in a list of DIPROTECH clients, online or in promotional materials. In addition, the CUSTOMER also accepts that DIPROTECH may make a verbal reference to the CUSTOMER as a client of DIPROTECH products or services, as stipulated in this AGREEMENT. This clause is subject to Clause “Limitations of Distinctive Signs”.
Each party warrants to the other party that it will devote all its reasonable efforts and efforts to fulfill its obligations under this AGREEMENT.
No condition, warranty or other terms shall apply to any Service or other goods or services provided by DIPROTECH pursuant to this AGREEMENT unless expressly set forth in this AGREEMENT. For the sake of clarity, no implied terms, warranties or conditions (including conditions relating to satisfactory quality, suitability for a particular purpose or compliance with the description) shall apply.
DIPROTECH does not make any representations or warranties concerning any content contained in or accessed through the Services, and we will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services. DIPROTECH make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through the Services.
SUBSCRIPTION TERM AND RENEWAL
Duration of these Terms
This AGREEMENT will take effect on the Effective Date and shall remain in force during the subscription Term or other Term specified in the Purchase Order, except in the case of early termination.
The subscription will be renewed automatically as indicated once achieved the period of the Subscription Term. Renewal subscription fee indicated in the Purchase Order will apply. If the renewal fee is not included in the Purchase Order, DIPROTECH subscription fee available at that time will be applied on the day of the renewal.
Purchases during the Term of Services
DIPROTECH will provide the Services to the CUSTOMER during each subscription Term of the Services. Unless the parties agree otherwise in writing, the additional Services purchased during the subscription Term for the Services will have a prorated period ending on the last day of the subscription Term for the Services. If the CUSTOMER adds or modifies the additional Services during the subscription Term, the fees for these additional Services will be prorated and renewed along with the subscription, unless otherwise indicated in the corresponding Purchase Order.
Review of subscription fees
DIPROTECH may revise its subscription fees for any Renewal Term by notifying it in writing or by e-mail to the CUSTOMER at least 45 days before the Renewal Term begins, unless otherwise indicated in the corresponding Purchase Order.
The Services will be renewed at the end of each subscription Term of the Services in accordance with the choice of the CUSTOMER in the Purchase Order or in the thehtings.io Panel or Website (if this option is provided). The renewal fees indicated in the Purchase Order will apply. This fee will be subject to adjustments as specified in previous sections.
Renewal fee is not included in the Purchase Order, DIPROTECH subscription fee available at that time will be applied on the day of the renewal.
Modification of Subscription
The CUSTOMER may modify the subscribed Services by communicating to DIPROTECH a new Purchase Order for the account to be renewed or directly through the thehtings.io Panel or Website (if this option is provided). The CUSTOMER will continue to pay DIPROTECH the current subscription according to the applicable fees for renewal unless the CUSTOMER and DIPROTECH agree otherwise.
Notice of non-renewal by CUSTOMER
Unless otherwise specified in the Purchase Order, the subscription will be renewed automatically. In order to prevent the service subscription from being automatically renewed, the CUSTOMER must send a written notification no less than forty-five (45) days before the end of the subscription Term. If the CUSTOMER decides not to renew his subscription, he must send a Notice of Non-renewal by email to email@example.com. This notification of non-renewal will be effective once the current service subscription Term expires, at which time the AGREEMENT will terminate automatically.
Notice of non-renewal by INNOQUANT
Unless otherwise specified in the Purchase Order, if DIPROTECH does not wish to renew the Services, DIPROTECH will notify the CUSTOMER in writing (including sending email to the Notification Email Address) at least forty-five (45) days before the current service subscription Term ends. This notification of non-renewal will be effective once the current service subscription Term expires, at which time the AGREEMENT will terminate automatically.
Resolution in case of non-compliance
Either party may suspend compliance and/or resolve the AGREEMENT (including any Purchase Order issued on the basis thereof), with immediate effect, if the other party: (i) fails to comply with the present AGREEMENT, and the breach in question is not susceptible to correction; (Ii) fails to comply with this AGREEMENT in an essential manner twice or more, without prejudice to any remedy of non-compliance; or (iii) fundamentally breaches this AGREEMENT and, notwithstanding that such breach may be remedied, the party in question will not remedy it within a period of thirty (30) days from the receipt of the written notification in this regard sent by the other part.
Resolution in cases of insolvency
Either party may suspend compliance with this AGREEMENT and/or terminate it (including any Purchase Order issued on the basis thereof), with immediate effect: (i) in the event that the other party reaches any settlement or composition with its creditors or for the benefit of the latter, or be subject to any form of judicial administration or liquidation, be declared bankrupt or insolvent, or be dissolved or in any other way cease its activity; or (ii) in the event that said other party is subject to any similar event or procedure in the jurisdiction in which it was incorporated or was a resident, or in which it carried out its activity or had assets.
Effects of contract termination
In the event of resolution or termination of this AGREEMENT (including Purchase Orders): (i) immediately cease any rights granted by either party to the other; (Ii) DIPROTECH shall allow the CUSTOMER to access and export the CUSTOMER Data for a reasonable period of time, with DIPROTECHs pricing rates in effect at that time in respect of the applicable Services in question; (iii) after a reasonable period of time, DIPROTECH will delete the CUSTOMER Data by deleting all associated information from the active and replicated DIPROTECH storage servers and overwriting such information over time; and (iv) each party shall, at the request of the other, make reasonable efforts to immediately return or destroy any Confidential Information of the other party in its possession.
If the CUSTOMER receives any claim from a third party in which it alleges that either the technology used by DIPROTECH for the purpose of providing the Services, or any DIPROTECH Distinctive Sign infringes any copyright, secret or trademark of that third party (a) shall immediately notify such circumstance to DIPROTECH, and (b) provide DIPROTECH with any information, assistance and reasonable assistance in order to respond and, in its sole discretion, and (c) allow DIPROTECH to control and hold, on an exclusive basis, the defense against such claim and, as the case may be, any AGREEMENT that could be reached in this regard. The CUSTOMER may, at his/her expense, designate the counsel of his/her choice to supervise the handling of such claim.
DIPROTECH shall not be liable in any case under this Clause for any Intellectual and Industrial Property Claims derived from: (a) the use of DIPROTECH Distinctive Services or Signs in any way that does not comply with provided in this AGREEMENT, any modification or alteration of Distinctive Services or Signs, or any combination thereof with third party Products; and/or (b) any content, information or data provided by the CUSTOMER, Users or any other third party, to DIPROTECH.
In the event that a third party alleges, or DIPROTECH understands, that the use of the Services by the CUSTOMER infringes Intellectual and Industrial Property Rights, DIPROTECH may (in its sole discretion) suspend the use by the CUSTOMER of any of the Services, or modify such Services in order to remedy the violation. In the event that neither option is commercially reasonable, DIPROTECH may suspend or terminate the use by the CUSTOMER of the affected Services. If any suspension that may occur under this clause extends for more than 30 days, the CUSTOMER may, at any time and until the date on which the provision of the Services in question is resumed, immediately resolve this AGREEMENT by sending to DIPROTECH a written notice.
In the event of termination of the Services in accordance with the provisions of this Clause, DIPROTECH will reimburse in the proportion that proceeds any amount actually paid by the CUSTOMER corresponding to the period after the termination.
If DIPROTECH receives any claim from a third party in which it alleges that the CUSTOMER Data, the CUSTOMER Name or Domain Names and/or the CUSTOMER Distinctive Signs infringe Intellectual and Industrial Property Rights, DIPROTECH (a) shall immediately notify such circumstance to the CUSTOMER, and (b) provide the CUSTOMER with any information, assistance and reasonable cooperation for the purpose of responding and, if appropriate, raising the defense corresponding to such claim in respect of Intellectual and Industrial Property of the CUSTOMER, and (c) allow the CUSTOMER to control and hold, exclusively, the defense against such claim and, if applicable, any extrajudicial agreement that could be achieved in this regard. DIPROTECH may, at its expense, designate the lawyer of its choice to supervise the handling of said claim.
This Clause includes the liability and corresponding actions of each party in the event of infringement of the Intellectual and Industrial Property Rights of a third party, excluding any other responsibilities or actions.
LIMITATION OF LIABILITY
The provisions of this AGREEMENT shall not exclude or limit the liability of any party in the event of:
(a) death or personal injury attributable to the gross negligence of either party or its employees, agents or representatives;
(b) false or fraudulent statement;
(c) breach of any implied term of ownership or peaceful possession; or
(d) misuse of confidential Information.
Except as expressly provided otherwise in this AGREEMENT, none of the provisions of this AGREEMENT constitutes an exclusion or limitation of the liability of the parties under Clause “Indemnification”.
Under Clause “Limitation of Liability”, neither party shall be liable under this AGREEMENT (under contract, tort (including negligence) or otherwise) of the following losses affecting the other party or (whether or not the parties have contemplated the possibility of such losses on the date of entry into force of this AGREEMENT):
- a) Loss of actual or anticipated benefits (including contract benefits);
- b) Loss of anticipated saving;
- c) Loss of business opportunities;
- d) Loss of prestige or damage to goodwill;
- e) Special, indirect or derivative losses.
Unless otherwise provided in this AGREEMENT, any notice or notice of termination or breach of this AGREEMENT shall be made in English or in Spanish by writing to the Legal Department of the other party and forwarded to the registered office (or to address for notifications specified in the Purchase Order) or (as applicable) to the email address firstname.lastname@example.org, or in each case to any other address which either party has notified to the other. The notifications will be understood delivered at the moment of their reception as a result of the corresponding physical or electronic acknowledgment (as applicable in each case). Any other communication must be made in English or in Spanish by writing to the main contact of the other party and sent to the postal address or email of the latter in force at that time.
Neither party may assign its rights or obligations under this AGREEMENT without the prior written consent of the other party, except in the case of assignment to any Company in its Company Group, provided that:
(i) the assignee undertakes for written to be bound by the terms of this AGREEMENT;
(Ii) the assignor notifies the assignment to the other party; and
(iii) in those cases where the assignor is the CUSTOMER, the assignee satisfactorily passes all the credit controls required by DIPROTECH.
Subject to this AGREEMENT, DIPROTECH may subcontract in whole or in part compliance with its obligations under this AGREEMENT without the prior written consent of the CUSTOMER. DIPROTECH will nevertheless continue to be fully responsible for compliance with them, in particular for any actions and/or omissions of its subcontractors in this regard, as if it were their own actions and/or omissions.
The Parties shall not be liable for breach of the obligations set forth in this AGREEMENT to the extent that such breach is due to causes reasonably beyond the control of the defaulting Party, such as, but not limited to, fires, floods, strikes, labor disputes or other social disorders, shortage or unavailability of fuel or electric power, unavailability or anomalous functioning of communications networks, accidents, wars (declared or not declared), commercial embargoes, blockades, disturbances or insurrections.
The lack of exercise or delay in the exercise of any right or action contemplated or derived from this AGREEMENT shall not imply any waiver to enforce said (or any other) right or action.
Any nullity, annul ability or inability, total or partial, of any of the terms of this AGREEMENT will not prejudice the validity or effectiveness of the same or the remaining part of the affected clause (if any).
Relationship between the parties
Except as expressly provided otherwise, the provisions of this AGREEMENT shall not create any type of agency relationship, partnership or joint venture between the parties.
Any modification to this AGREEMENT must be made in writing, expressly indicate its character as such and must be notified by DIPROTECH to the CUSTOMER.
Any dispute arising from the interpretation or execution of these Terms of Service or any of its possible modifications, as well as any breach thereof, shall be interpreted in accordance with Spanish law.
In order to resolve any controversy related to the provisions of this AGREEMENT or in execution thereof, DIPROTECH and the CUSTOMER expressly submit to the Courts and Tribunals of Barcelona, with waiver of any other jurisdiction that may correspond to them. The language to be used will be Spanish.