1. DEFINITIONS
Capitalized terms are defined in the glossary at the end of this document.
2. PROVISION OF SERVICES AND LIMITATIONS
2.1 Provision of the Service
Subject to the terms of the agreement, QUALIMERO will provide the customer with the services
2.2 Granting of Rights
QUALIMERO grants the customer a non-exclusive and non-transferable right to use the service and the documentation as contractually permitted exclusively for the customer's internal business operations
2.3 Terms of Use
In relation to the service, the customer is prohibited from:
(a) except to the extent that these rights cannot be effectively waived, disassembling, decompiling, reverse engineering, copying, translating, or creating derivative works,
(b) distributing, renting, selling, leasing, or using for non-civilian purposes,
(c) transmitting content or data that is unlawful, including, but not limited to, illegal calls, or violating intellectual property rights, or
(d) circumventing or compromising the operation or security of QUALIMERO
2.4 Monitoring
QUALIMERO is entitled, but not obligated, to monitor the use of the service (only to the extent permitted under applicable laws):
(a) to comply with applicable laws, regulations, or other governmental requests or orders, including disclosing customer data in accordance with such laws, regulations, requests, or orders;
(b) to verify the customer's compliance with the agreement;(c) to protect the integrity of its systems and networks and those of its providers;
(d) as necessary for the provision and support of the service; or(e) as otherwise authorized or required by the customer.
2.5 Compliance
The customer is obliged to promptly provide all information about the customer data or the customer's use of the service to QUALIMERO upon request:
(a) to determine the customer's compliance with the agreement and
(b) in response to a request from a supervisory authority or a government, judicial, or public authority.
2.6 Operational Instructions
The customer is obliged to use the service in accordance with the operational policies and principles provided by QUALIMERO to the customer from time to time or otherwise set forth in the agreement.
2.7 Blocking of the Service
QUALIMERO may block the use of the service:
(a) as required to comply with applicable laws or regulations;
(b) to maintain (planned or in emergencies) or repair the QUALIMERO network;
(c) if the use poses a risk to the integrity or continued operation of the QUALIMERO network or a part thereof;
(d) if the use violates the agreement or could legally hold QUALIMERO liable;
(e) at QUALIMERO's sole discretion, if failing to block would result in a significant impairment of the services or their provision by QUALIMERO, provided that QUALIMERO limits the blocking in time and extent as reasonably necessary under the circumstances; or
(f) if QUALIMERO is unable to provide the service due to termination or modification of the relationship between QUALIMERO and a third party or due to termination or suspension of a license or permission required to provide the service.QUALIMERO will promptly notify the customer (email permitted) of the blocking. QUALIMERO will resume the service as soon as the cause of the blocking is remedied. If a blocking is due to actions or omissions of the customer, QUALIMERO will resume the service, provided that the customer has remedied the cause of the blocking and the customer pays all incurred fees for the reconnection or, if no fees are set, reimburses QUALIMERO all reasonable costs and expenses incurred in resuming the service, and provided further that QUALIMERO may terminate the agreement if the customer does not remedy the cause of the blocking within thirty (30) days.
2.8 Third-Party Web Services
The service may include integrations of web services provided by third parties (other than QUALIMERO or its affiliates) that can be accessed through the service and are subject to the terms and conditions of these third parties. These third-party web services are not part of this service, and the agreement does not apply to them.
2.9 Mobile Access to the Service
The customer may access certain services via mobile applications obtained from third-party websites such as the Android or Apple App Store. The use of mobile applications may be subject to terms and conditions displayed when downloading/accessing the mobile application, not the terms of this agreement.
2.10 Fraud Prevention
QUALIMERO takes measures to detect and prevent fraud and illegal practices in the use of the service, including, but not limited to, verifying links inserted by the customer when using the service. QUALIMERO does not guarantee that it will be able to block or prevent the transmission of fraudulent messages or calls. The customer is responsible for ensuring that its account is not used to transmit fraudulent messages or calls. Fraud does not relieve the customer of its payment obligations under this agreement.
3. QUALIMERO'S RESPONSIBILITIES
3.1 Provision
QUALIMERO will provide access to the service as described in the agreement.
3.2 Support
QUALIMERO will provide support for the service as indicated in the order form.
3.3 Changes
(a) The service and QUALIMERO policies may be changed by QUALIMERO. QUALIMERO will inform the customer of the changes via email, the support portal, release notes, documentation, or the service. The information will be sent by email if the change is not exclusively an extension. The changes may include optional new features for the service that the customer can use according to the current supplements and documentation.
(b) If the customer finds that a change by QUALIMERO significantly impairs the customer's use of the service and is not reasonable for the customer for legitimate business reasons, the customer may terminate its access to the affected service by written notice to QUALIMERO within thirty (30) days of the change.
3.4 Excluded Events
Notwithstanding any contrary provisions in the contract, QUALIMERO is not liable for non-performance or delay in performing an obligation under the agreement if such non-performance or delay is due to the occurrence of an excluded event.
3.5 Evaluations
QUALIMERO or its affiliates may use anonymous information about the use of the service to create analyses. The analyses do not contain the customer's confidential information. Examples of analyses include: optimizing resources and support; research and development; verifying security and data integrity; and internal demand planning.
CUSTOMER RESPONSIBILITY AND CUSTOMER DATA
4.1 Customer Obligations
The customer is obliged:
(a) to comply with all laws and regulations applicable to the customer data and the customer's use of the service, including, but not limited to, telecommunications laws and regulations, export control laws and regulations, economic, trade, and financial sanctions laws and regulations, embargoes, lists of restricted states, or restrictive measures imposed.
(b) to continue to obtain all necessary approvals, consents, rights, authorizations, or certifications for the use of the service, including, but not limited to, all customer data transmitted in the course of such use; and
(c) to promptly follow all instructions and/or orders issued from time to time by a government or regulatory authority regarding the customer data or the customer's use of the service, and to fully support QUALIMERO in adjusting the service to new requirements or determinations upon request.
4.2 Customer Data
The customer is solely responsible for all customer data. The customer
(i) grants QUALIMERO (including its affiliates and subcontractors) a non-exclusive, worldwide right to use, modify, adapt, and process customer data for analysis, development, testing, and the operation, provision, and support of QUALIMERO's and its affiliates' service and/or products and
(ii) acknowledges that neither QUALIMERO, its affiliates, nor their respective providers exercise any control over the customer data and act as mere passive conduits in the transmission and handling of customer data.The customer acknowledges and agrees that all messages sent through its account are deemed sent and/or authorized by the customer.
4.3 Personal Data
The customer will collect and maintain all personal data necessary for the use of the service and all necessary consents related to these personal data in accordance with applicable data protection laws.
4.4 Support
The customer is required to reasonably cooperate with QUALIMERO in providing and supporting a service by QUALIMERO, particularly in diagnostic or other maintenance or upgrade activities.
4.5 Access and Security
The customer is solely and exclusively responsible for the installation, configuration, security (including firewall security), and integrity of all customer facilities, systems, devices, proxy servers, software, networks, network configurations, and the like (the "Customer Devices") used or related to the services provided by QUALIMERO, including, but not limited to, the customer's connection to third parties. The customer will maintain appropriate security standards to protect the QUALIMERO network from unauthorized access, including, but not limited to, protecting the customer's passwords from disclosure to or access by third parties. The customer is obliged to inform QUALIMERO immediately if it becomes aware of a possible or actual unauthorized use, misuse, or access to the service.
4.6 Disaster Recovery
The customer is solely responsible for all arrangements for disaster recovery, business continuity, and data backup in relation to its own devices and all its customer data.
4.7. Test Account
Qualimero may provide the customer with an account for non-productive tests, demonstrations, and evaluations of certain services (with or without a purchase order and at Qualimero’s discretion). The terms of the agreement govern the customer's use and access to such a test account and the services to be tested. The customer ensures that the test account and the services to be tested are used exclusively for non-productive test, demonstration, and evaluation purposes and not for profitable, commercial, or other purposes. The customer shall not connect the services to be tested with a profitable IT environment. The customer is obliged to follow all relevant instructions or protocols communicated by Qualimero regarding the test account and the services to be tested. The customer agrees that Qualimero can revoke such a test account and the services to be tested at any time (with or without notification of the customer).
5. FEES AND TAXES
5.1 Fees and Payment
The customer pays the fees as indicated in the purchase order. In case of non-payment, QUALIMERO may suspend the customer's use of the service until payment is made, after prior written notification. The customer cannot withhold, reduce, or offset the fees owed during the contract period. For each invoice not settled by the due date, interest at the maximum allowable rate will be charged on the unpaid amount. The fees to be paid are calculated based on the data recorded or logged by Qualimero, not on the customer's recorded or logged data. Invoices issued by Qualimero are final, conclusive, and binding on the customer. The customer may dispute an invoice in writing and in good faith within thirty (30) days of the invoice date, provided that the undisputed part of such an invoice is paid on time. Omissions or delays in invoicing by Qualimero do not prevent Qualimero from issuing an invoice at a later date and do not relieve the customer of their payment obligation.
5.2 Taxes
Unless otherwise stated in a purchase order, the fees and other costs incurred under a purchase order do not include taxes, including withholding taxes, which are the customer's responsibility. Except for QUALIMERO's income and payroll taxes, the customer is responsible for all taxes, including withholding taxes. If QUALIMERO is obliged to pay taxes (other than income and payroll tax), the customer will reimburse QUALIMERO for these amounts and indemnify QUALIMERO for all taxes and related costs paid or to be paid by QUALIMERO related to these taxes.
5.3 Offset
QUALIMERO is entitled to offset any amounts owed by the customer under this agreement and/or any other contract with QUALIMERO against any amounts QUALIMERO owes to the customer, without notifying the customer and regardless of the place of payment or the currency of the relevant obligations.
6. TERM AND TERMINATION
6.1 Term
The term is as specified in the purchase order.
6.2 Termination by Either Party
A party may terminate the agreement:
(a) after written notification of a material breach by the other party with a period of thirty (30) days, provided the breach is not remedied within this period;
(b) as permitted under sections 3.3(b), 6.3(b), or 8.1
(c) (with termination in each of these cases effective thirty (30) days after receipt of the notification); or(c) immediately if the other party files for bankruptcy, becomes insolvent, makes an assignment for the benefit of creditors, or otherwise significantly breaches sections 11 or 13.6.
6.3 Termination by QUALIMERO
In addition to the termination rights mentioned in section 6.2, QUALIMERO may also terminate the agreement or a specific service affected by it at any time:
(a) upon termination of a relationship between a network operator, a third-party subcontractor, a provider, or a connected network operator and QUALIMERO or its affiliates, or if support for devices or a service component needed by QUALIMERO to provide the service is discontinued;
(b) due to legal, regulatory, or governmental prohibitions or restrictions affecting the service; or
(c) upon termination or expiration of a license required to provide the service.Furthermore, Qualimero may immediately terminate the entire agreement, without prejudice to any other clause in the agreement and applicable laws, if illegal practices and/or fraudulent use of the service are proven.
6.4 Effect of Expiration or Termination
Upon actual expiration or termination of the agreement:
(a) The customer's right to use the service and all confidential information from QUALIMERO ends;
(b) QUALIMERO ceases providing the affected service;(c) Confidential information of the disclosing party is returned or destroyed upon written request of the disclosing party;
(d) The customer immediately pays QUALIMERO all outstanding amounts due under the agreement; and
(e) The termination or expiration of the agreement leaves other contracts between the parties unaffected.6.5 Survival.Sections 1, 2.4, 2.5, 5, 6.4, 6.5, 8, 9, 10, 11, and 13 will continue to apply after the expiration or termination of the agreement.
7. WARRANTIES
7.1 Compliance with Laws
Each party guarantees that it currently and in the future will comply with all laws and regulations applicable to it in connection with (i) in the case of QUALIMERO, the operation of QUALIMERO's business in relation to the service and (ii) in the case of the customer, the customer data and the customer's use of the service.
7.2 Industry Practices
QUALIMERO guarantees that it will provide the service:
(a) In substantial compliance with the documentation; and
(b) With the level of skill and care that can be expected from a reasonably qualified and experienced global provider, substantially similar in nature and type to the service.
7.3 Remedies/Warranty Rights
The sole and exclusive remedies/warranty rights of the customer and the entire liability of QUALIMERO for breach of the warranty in section 7.2 are:
(a) reperformance of the defective service and
(b) If QUALIMERO fails to provide reperformance, termination of the affected service. The termination must occur within three (3) months after QUALIMERO's failure to reperform.
7.4 Warranty Exclusions
The warranties in section 7.2 do not apply if:
(a) the service is not used in accordance with the agreement or documentation;
(b) the non-compliance is caused by the customer or a product or service not provided by QUALIMERO; or
(c) the service was provided free of charge.
7.5 Disclaimer
Unless expressly provided in the contract, neither QUALIMERO nor its subcontractors make any representations or warranties, and QUALIMERO and its subcontractors exclude to the greatest extent legally permissible all representations, warranties, provisions, conditions, or statements that might be effective between the parties or implied into this agreement or any ancillary contract, whether by law, common law, or otherwise, including implied conditions, warranties, or other terms regarding merchantability, fitness, authenticity, or suitability for a particular use or purpose. Moreover, unless expressly agreed in this agreement, neither QUALIMERO nor its subcontractors make representations, warranties, conditions, or statements regarding non-infringement of rights or the results arising from the use or integration of products or services provided under this agreement, or that the operation of products or services will be secure, uninterrupted, or error-free. The customer agrees that it did not rely on the delivery of future features, public comments, or advertising by QUALIMERO or product roadmaps in entering into the agreement. The customer acknowledges that (i) the service was not specifically developed to meet their and/or their individual customers' or end-users' requirements; and (ii) the service will not be error-free, uninterrupted, or free from unauthorized access (including hacker attacks or third-party denial-of-service attacks). Unless expressly stated in this agreement, the service is provided as is ("as seen") and as available.
8. THIRD-PARTY CLAIMS
8.1 Claims Against the Customer
(a) QUALIMERO will defend the customer against claims made by third parties against the customer, alleging that the customer's use of the service infringes or misuses a patent claim, copyright, or trade secret. QUALIMERO will indemnify the customer from all damage claims finally awarded against the customer in connection with these claims (or in an amount of a settlement concluded by QUALIMERO).
(b) QUALIMERO's obligations under section 8.1 do not apply if the claim results from (i) a breach of the agreement by the customer, (ii) the use of the service in conjunction with a product or service not provided by QUALIMERO, or (iii) the free use of the service.
(c) If a claim described in section 8.1(a) is made or threatened, QUALIMERO may (i) secure for the customer the right to continue using the service under the terms of this agreement, or (ii) replace or modify the service so it no longer infringes, without significantly reducing functionality.
If these options are not reasonable, either QUALIMERO or the customer may terminate the customer's access to the affected service by written notice to the other party.
8.2 Procedure for Third-Party Claims
(a) The customer is obliged to promptly inform QUALIMERO in writing about a potential claim.
(b) QUALIMERO has the right to fully control the defense (and it is QUALIMERO's discretion to delegate such a claim to its insurer or indemnifier).
(c) The customer is required to fully support the defense of such a claim and not to take any actions that would impair QUALIMERO's rights.
(d) The customer must not take any actions in response to an infringement or wrongful appropriation or an alleged infringement or wrongful appropriation that would be detrimental to QUALIMERO's rights.
8.3 Exclusive Remedy
The provisions in Section 8 represent the sole, exclusive, and complete liability of QUALIMERO, its affiliates, and subcontractors towards the customer and are the customer's sole remedy concerning third-party claims and the infringement or wrongful appropriation of third parties' intellectual property rights.
9. LIMITATION OF LIABILITY
9.1 Unlimited Liability
None of the parties excludes their liability for damages arising from:(a) QUALIMERO's obligations under Section 8.1(a);
(b) the customer's obligations under an indemnity agreement;
(c) unauthorized use or disclosure of confidential information;(d) fraud or fraudulent misrepresentation;
(e) death or personal injury caused by gross negligence or willful misconduct of either party;
(f) the customer's failure to pay due fees under the agreement; or
(g) any liability that cannot be excluded or limited under applicable law.
9.2 Cap on Liability
Subject to Sections 9.1 and 9.3, the maximum total liability of either party (or their respective affiliates or QUALIMERO's subcontractors) towards the other party or its affiliates or any other natural or legal person (however arising) under or in connection with this agreement, including (but not limited to) liability for breach of contract, tort (including, but not limited to, negligence), misleading representations (whether tortious or statutory), breach of statutory duty, breach of warranties, third-party claims arising from any minor, major, or other breach of this agreement (whether intentional or not), intentional misconduct, or otherwise, shall not exceed a total of 10,000 EUR for all events (or a series of related events) occurring within any twelve (12) month period.
9.3 Exclusion of Damages
Subject to Section 9.1:
(a) Under no circumstances shall either party (nor their respective affiliates or QUALIMERO's subcontractors) be liable to the other party or its affiliates or any other natural or legal person (regardless of whether the other party was aware of the possibility of such loss or damage) for any of the following types of losses or damages arising out of or in connection with this agreement (whether arising from liability for breach of contract, tort (including, but not limited to, negligence), misleading representation (whether tortious or statutory), breach of statutory duty, breach of warranties, third-party claims arising from any minor, major, or other breach of this agreement (whether intentional or not), intentional misconduct, or otherwise):
(b) (i) loss or inaccuracy of data, (ii) loss of profits, (iii) loss of business, (iv) losses due to business interruption, (v) loss of contracts, (vi) loss of earnings, (vii) loss of anticipated savings, (viii) loss of goodwill, (ix) reputational damage (regardless of whether the types of losses or damages listed in this subparagraph (A) are direct, indirect, special, or consequential); or(c) For special, incidental, consequential, or indirect losses or damages, or for punitive damages;(d) QUALIMERO is not liable for damages caused by a free service.
9.4 Distribution of Risk
The agreement distributes risks between QUALIMERO and the customer. The fees for the service reflect this risk distribution and limitation of liability.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 Ownership by QUALIMERO
QUALIMERO, its affiliates, or licensors own all intellectual property rights in and related to the service, the documentation, design contributions, corresponding knowledge or processes, and all derivative works. All rights not expressly granted to the customer are reserved by QUALIMERO, its affiliates, and its licensors.
10.2 Ownership by the Customer
The customer retains all rights to the customer data existing between them and QUALIMERO.
10.3 Non-Assertion of Rights
The customer agrees not to assert any rights or claims to rights in a service or documentation on their own behalf and on behalf of their successors in title and assignees against QUALIMERO, its affiliates, or licensors.
11. CONFIDENTIALITY
11.1 Use of Confidential Information
(a) The receiving party will treat all confidential information of the disclosing party as strictly confidential, to the same extent as it protects its own confidential information, and not less than with a reasonable degree of care. The receiving party will not disclose any confidential information of the disclosing party to anyone other than its personnel or representatives or those of its affiliates whose access is necessary to enable it to exercise its rights or fulfill its obligations under this agreement and who are subject to at least as stringent a confidentiality and non-use obligation as in Section 11. The customer will not disclose the agreement or pricing to third parties.
(b) Confidential information of either party disclosed before the signing of the agreement is subject to Section 11.
(c) The receiving party will promptly return or destroy all confidential information upon request from the disclosing party.
11.2 Exceptions
The restrictions on the use or disclosure of confidential information do not apply to confidential information that:(a) is independently developed by the receiving party without reference to the disclosing party's confidential information;(b) is or becomes publicly available without breach of the agreement by the receiving party;(c) is known to the receiving party free of confidentiality restrictions at the time of disclosure; or(d) is accepted in writing by the disclosing party as free from confidentiality restrictions.
11.3 Compelled Disclosure
The receiving party may disclose confidential information as required by law or by request of a court or governmental authority (including under securities rules or regulations); provided that, before making such a disclosure,
(a) the receiving party notifies the disclosing party in writing to the extent economically feasible and not otherwise legally prohibited, so the disclosing party can seek a protective order or other appropriate remedy, and
(b) discloses only that portion of the confidential information that it is advised by its legal counsel is required to be disclosed to meet the legal requirement, and makes reasonable efforts to obtain confidential treatment of the confidential information so disclosed.
11.4 Public Relations
Neither party shall use the other party's name in public relations without prior written consent of the other party, except that the customer agrees that QUALIMERO may use the customer's name in customer lists or in quarterly discussions with its investors or at times mutually agreed upon by the parties as part of QUALIMERO's marketing efforts (including reference calls and reports, press releases, site visits). The customer agrees that QUALIMERO may disclose information about the customer for marketing and other business purposes to its affiliates and that it has obtained the necessary consents to disclose contact information of the customer's employees to QUALIMERO.
12. DATA PROTECTION
12.1 Controller
The customer acknowledges that in certain situations, Qualimero acts as:
(a) an independent controller in relation to the processing of personal data necessary for the operation of the services, including processing information for the purpose of transmitting a message over an electronic communications network, for billing, or for the administration of the services (to the extent permissible under data protection laws), such as contact and contract data of the customer.
(b) a joint controller in relation to the processing of personal data for the purpose of providing the services. These situations are specified in the order form and other documents related to a specific service.
12.2 Processor
(a) Each party complies with applicable data protection laws.
(b) Whenever Qualimero processes personal data on behalf of the customer (in accordance with data protection laws), Qualimero is classified as a processor and the customer as a controller, as defined in this agreement (and further defined as applicable in the data protection agreement for the service).
(c) The parties agree that the data protection agreement applies to the processing of personal data as described in the agreement. If the customer is the controller and Qualimero is the processor, the customer is obliged to inform Qualimero in writing about the data protection laws applicable to the processing of personal data for which the customer is the controller.
(d) The customer warrants, represents, and undertakes to Qualimero that it possesses and will maintain all necessary rights, licenses, and consents to provide Qualimero with its customer data for the purposes described in this section. Qualimero may, if necessary and in accordance with the terms of the agreement, require the customer to provide evidence thereof.
(e) The customer acknowledges, allows, and accepts that Qualimero may retain, store, use, and disclose the data only to the extent necessary to provide and improve the services and to meet applicable legal, accounting, or regulatory requirements. Qualimero will establish processes to ensure compliance with applicable laws.
(f) The customer acknowledges, allows, and accepts that Qualimero may process the customer's contact and contract data for the purpose of customer relationship management and customer development and that such information may be shared with affiliated companies that are part of the Qualimero group for the described purposes.
12.3 Business-to-Business
Insofar as the customer is a business, the parties shall enter into a data processing agreement.v
13. MISCELLANEOUS
13.1 Severability
If any provision of the agreement is found to be invalid or unenforceable, it does not affect the validity of the remaining provisions of the agreement.
13.2 No Waiver.A waiver of a breach of the agreement does not constitute a waiver of any other breach
13.3 Electronic Signature
Electronic signatures that comply with applicable law are considered original signatures.
13.4 Regulatory Matters
QUALIMERO's confidential information is subject to the export control laws of various countries. The customer will not submit QUALIMERO's confidential information to any government authority for consideration of licenses or other regulatory approvals and will not export QUALIMERO's confidential information to countries, persons, or entities if prohibited by export laws.
13.5 Notices
All notices must be in writing and delivered to the address specified in the order form with a copy to the Legal Department. Notices from QUALIMERO related to the operation or support of the service and otherwise allowed in the Terms and Conditions or an order form (including, but not limited to, notices under Sections 2.7 and 5.1 of these Terms and Conditions) may be made by email to the customer's authorized representative or administrator, with such notice deemed given upon dispatch from QUALIMERO's email server.
13.6 Assignment
Without prior written consent from QUALIMERO, the customer may not assign or transfer the agreement (or its rights and obligations) to a third party. QUALIMERO may assign the agreement to any of its affiliates. Any attempted assignment in violation of this section is void from the outset.
13.7 Subcontracting
QUALIMERO may subcontract parts of the service to third parties. QUALIMERO is liable for breaches of the agreement caused by its subcontractors. Nothing prevents QUALIMERO from delegating the performance of some or all of its obligations under this agreement to an affiliated company.
13.8 Relationship of the Parties
The parties are independent contractors, and the agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
13.9 Third-Party Rights
Unless expressly provided in this agreement, this agreement does not make a third party a beneficiary of this agreement or entitle them to any rights, particularly not the right to enforce any provision of this agreement. Any liability, loss, or damage incurred by an affiliate of QUALIMERO in connection with the provision of the service to the customer or its use by the customer under this agreement is deemed to be a liability, loss, or damage incurred by QUALIMERO.
13.10 Force Majeure
A delay in performance (except for the payment of due amounts) caused by circumstances beyond the performing party's control does not constitute a breach of the agreement. The performance period is extended by the period corresponding to the duration of the performance impediment.
13.11 Anti-Corruption
In addition to their actions under this agreement, the parties will also comply with all applicable anti-corruption and bribery laws. Neither party nor their officers, directors, employees, agents, affiliates, delegates, or representatives shall directly or indirectly pay, offer or promise to pay or authorize the payment of money, a gift, or any other form of benefit to any official or employee of a private organization or company, the government or a governmental authority, an authority or a company the majority shareholder of which is a governmental entity, a public organization, a candidate for public office, a political party, a member of a political party, a person acting in an official capacity, or to a person or entity acting for or on behalf of any of the parties mentioned in this paragraph, to influence an act or decision, whether this is done to obtain a business advantage or to obtain or retain business or to direct transactions to any person. The parties further commit to keeping books, records, and accounts that accurately and fairly reflect the transactions and the disposition of the assets and to preserve and make available to the other party upon request information necessary to verify compliance with this paragraph.
13.12 Export Regulations
The customer acknowledges that the products delivered by QUALIMERO under this contract may be subject to applicable export and import control laws and regulations or sanctions and that the customer may need an export or import license from a government authority to export, transfer, or import hardware, software, or documentation. The customer warrants that it is not listed on sanction lists such as the EU Sanction List or the U.S. Treasury Department's "Specially Designated Nationals and Blocked Persons" list and guarantees that it will use the products only for civilian and peaceful purposes and not for the development or production of conventional weapons and/or nuclear, chemical, or biological weapons or missiles. No provision of this agreement shall be construed to involve either party directly or indirectly in the export, re-export, transfer, or use of goods, technologies, software, or services that are prohibited by applicable export control or sanctions regulations.
13.13 Applicable Law[DELETE ALL EXCEPT FOR THE COUNTRY APPLICABLE TO THE RELEVANT QUALIMERO CLIENT]
(a) IF ARGENTINA: The agreement is governed by the laws of the Republic of Argentina, and the parties choose the court of Buenos Aires as the exclusive jurisdiction for all matters or disputes arising out of the agreement, excluding any other jurisdiction however privileged it may be.
(b) IF AUSTRALIA: The agreement and all claims related to its subject matter are governed by the laws of New South Wales, without reference to principles of conflict of laws. All disputes are subject to the exclusive jurisdiction of the courts of New South Wales.
(c) IF BELGIUM: The agreement is governed by Belgian law and will be interpreted in accordance with it, without reference to principles of conflict of laws. All disputes are subject to the exclusive jurisdiction of the courts in Brussels, Belgium.
(d) IF BRAZIL: The agreement is governed by the laws of the Federative Republic of Brazil and will be interpreted in accordance with these laws. All disputes are subject to the exclusive jurisdiction of the Central District in São Paulo, State of São Paulo.
(e) IF CANADA: The agreement is governed by the laws of the Province of Quebec and the federal laws of Canada as applicable there, and will be interpreted in accordance with these laws, without reference to principles of conflict of laws. All disputes are subject to the exclusive jurisdiction of the provincial and federal courts in the judicial district of Montreal, Quebec.
(f) IF CHILE: The agreement is governed by the law of the Republic of Chile and the parties choose the court of Santiago as the exclusive jurisdiction for all matters or disputes arising out of the agreement, excluding any other jurisdiction however privileged it may be.
(g) IF COLOMBIA: The agreement is governed by the laws of the Republic of Colombia and the parties choose the court of Bogota as the exclusive jurisdiction for all matters or disputes arising out of the agreement, excluding any other jurisdiction however privileged it may be.
(h) IF ECUADOR: The agreement is governed by the law of the Republic of Ecuador and the parties choose the court of Quito as the exclusive jurisdiction for all matters or disputes arising out of the agreement, excluding any other jurisdiction however privileged it may be.
(i) IF FINLAND: The agreement is governed by the laws of Finland and will be interpreted in accordance with these laws, without reference to principles of conflict of laws. All disputes are subject to the exclusive jurisdiction of the courts in Helsinki, Finland.
(j) IF GERMANY: The agreement is governed by the laws of Germany and will be interpreted in accordance with these laws, without reference to principles of conflict of laws. All disputes are subject to the exclusive jurisdiction of the courts in Berlin, Germany.
(k) IF MEXICO: The agreement is governed by Mexican law applicable in Mexico City, and the parties choose the court of Mexico City as the exclusive jurisdiction for all matters or disputes arising out of the agreement, excluding any other jurisdiction however privileged it may be.
(l) IF PERU: The agreement is governed by the law of the Republic of Peru and the parties choose the court of Lima as the exclusive jurisdiction for all matters or disputes arising out of the agreement, excluding any other jurisdiction however privileged it may be.
(m) IF SINGAPORE: Choice of Law and Jurisdiction. This agreement and all matters relating to this agreement are governed by the laws of Singapore and will be interpreted in accordance with these laws, without reference to principles of conflict of laws. All disputes are subject to the exclusive jurisdiction of the courts of Singapore. A person who is not a party to this agreement has no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore, to enforce any provision of this agreement.
(n) IF SWEDEN: The agreement is governed by Swedish law and will be interpreted in accordance with this law, without reference to principles of conflict of laws. All disputes are subject to the exclusive jurisdiction of the courts in Stockholm, Sweden.
(o) IF UK: The agreement is governed by the laws of England and Wales and will be interpreted in accordance with these laws, without reference to principles of conflict of laws. All disputes are subject to the exclusive jurisdiction of the courts in London, England.
(p) IF URUGUAY: The agreement is governed by the law of Uruguay, and the parties choose the court of Montevideo as the exclusive jurisdiction for all matters or disputes arising out of the agreement, excluding any other jurisdiction however privileged it may be.
(q) IF USA: The agreement is governed by the laws of the State of Georgia, USA, and will be interpreted in accordance with these laws, without reference to principles of conflict of laws. All disputes are subject to the exclusive jurisdiction of the courts in Georgia, USA.
The United Nations Convention on Contracts for the International Sale of Goods (CISG) and the Uniform Computer Information Transactions Act (if enacted) do not apply to the agreement. Each party must assert any claim related to the agreement and its subject matter within one (1) year from the date on which it became or should have become aware of the facts establishing the claim, following a reasonable investigation. However, QUALIMERO is entitled to initiate enforcement proceedings against the customer and enforce its payment obligations in any jurisdiction.
13.14 Entire Agreement
The agreement constitutes the complete and exclusive agreement between QUALIMERO and the customer regarding the subject matter of the contract and supersedes all prior agreements, arrangements, and understandings between the parties in relation to this subject. Each party acknowledges that in entering into the agreement, it has not relied on any representation, discussion, collateral contract, or other assurance except those expressly set out in the agreement. Each party waives all rights and remedies that, but for this section, it might have had in relation to such representations, discussions, collateral contracts, or other assurances. Except as allowed under Section 3.3, this agreement may only be modified in writing and signed by both parties. The agreement prevails over any additional, conflicting, or inconsistent terms contained in an order issued by one party to the other, and any additional terms in such an order have no validity and effect, notwithstanding the acceptance or execution of such an order by the non-delivering party.
Glossary
"Affiliate" means QUALIMERO or any legal entity in which the customer or QUALIMERO directly or indirectly holds more than fifty percent (50%) of the shares or voting rights. A legal entity is considered an affiliate as long as this participation is maintained.
1.1 "Agreement" means an order form and the documents incorporated into an order form.
1.2 "Confidential Information" meansregarding the customer:
(i) the customer's marketing and business requirements,
(ii) the customer's implementation plans, and/or
(iii) the customer's financial information, and regarding QUALIMERO:
(i) the service, the documentation, and the analyses according to Section 3.5, and
(ii) information about QUALIMERO's research and development, product offerings, pricing, and availability.
Confidential information of QUALIMERO or the customer also includes information that the disclosing party protects against unrestricted disclosure to third parties and that
(i) is determined to be confidential by the disclosing party or its representatives at the time of disclosure or
(ii) should reasonably be considered confidential given the nature of the information and the circumstances of its disclosure.
Confidential information does not include customer data, for which QUALIMERO's obligations under Section 3.3 of the Terms and Conditions apply.
1.3 "Customer Data" are all contents, messages, data, and/or information that the customer delivers or uploads to the QUALIMERO network or a service or provides through a service. Customer data and its derivatives do not include QUALIMERO's confidential information or the usage data generated or produced by QUALIMERO in the provision of the service.
1.4 "Controller" as defined in the GDPR.
1.5 "Processor" as defined in the GDPR.
1.6 "Data Protection Agreement" is the data protection agreement applicable to the services ("DPA"), the latest version of which can be accessed at www.qualimero.com/en/privacy-policy.
1.7 "Data Protection Laws" means the relevant laws and other regulations applicable to the collection, use, storage, disclosure, or other processing of personal data (such as, but not limited to, the General Data Protection Regulation or "GDPR") and further defined in the data protection agreement.
1.8 "Documentation" refers to the current technical and functional documentation of QUALIMERO as well as any service descriptions and descriptions of roles and responsibilities for the service provided to the customer with the service.
1.9 "Excluded Event(s)" means one of the following events:
(i) a malfunction or other issue related to systems not operated or managed by QUALIMERO;
(iii) a breach of the agreement by the customer, a third party under the direct control of the customer, or a customer's third-party provider;
(iv) an act of the customer that disrupts or impedes the provision and support of the service;
(v) a blocking of the service according to the terms of this agreement; or
(vi) other circumstances caused by events for which QUALIMERO is not liable under the terms of this agreement.
1.10 "General Data Protection Regulation" or "GDPR" the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council in its current amended, supplemented, and/or changed version.
1.11 "Indemnification" refers to any section in an order form, an addendum, or the Terms and Conditions that is designated as indemnification either by its wording or its heading.
1.12 "Intellectual Property Rights" are copyrights, database rights, patents, patent applications, patent rights, trademarks, trademark applications, trademark registrations, trademark rights, trade secrets, rights in know-how, and all other rights in intellectual property and protected information that now exist or will exist in the future under the laws of any country, as well as all pending applications and the right to apply for or register them (present, future, and contingent, including all extensions, enlargements, resumptions, and all accrued rights of action).
1.13 "Order Form" is the ordering document for a service that refers to the Terms and Conditions.
1.14 "Personal Data" Information about a person defined as "personal data" or "personal information" as defined in the data protection agreement, and, if necessary, further defined in the applicable data protection laws, such as, but not exclusively, in the GDPR.
1.15 'Service' refers to any standalone service or services provided by QUALIMERO pursuant to an order form, including all associated support services for this service or these services.
1.16 'QUALIMERO Policies' are the operational policies and principles applied by QUALIMERO for the provision and support of the services, as contained in an order form.
1.17 'QUALIMERO Network' denotes the digital networks (wireless or otherwise), servers, hardware, software, and/or other devices used by QUALIMERO at its sole discretion in connection with the provision of the service, regardless of whether they are owned by QUALIMERO or an outsourced service provider, including an Extranet access provided by QUALIMERO in connection with the provision of the service.
1.18 'Supplement' refers to the supplementary general terms and conditions applicable to the service and incorporated into an order form.
1.19 'Term' denotes the duration specified in the respective order form, including all extensions.