1. Subscription to the Product.
3. License Restrictions.
Customer and any Users shall not (and shall not allow any User or third party to): (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Product, by any means whatsoever; (ii) distribute viruses or other harmful or malicious computer code via or into the Product; (iii) engage in any conduct that disrupts or impedes a third party’s use and enjoyment of the Product; (iv) remove any product identification, copyright or other notices from the Product; (v) sell, lease, lend, assign, sublicense, grant access or otherwise transfer or disclose the Product in whole or in part, to any third party; (vi) use the Product for timesharing, service bureau or hosting purposes or otherwise use, resell, sublicense, distribute or transfer or allow others to use the Product to or for the benefit of third parties; (vii) modify or incorporate into or with other software or create a derivative work of any part of the Product, unless agreed to in writing by Tebi; (viii) use the output or other information generated by the Product for any purpose other than as contemplated by the Agreement; (ix) use the Product for any use other than Customer’s internal business use; (x) use unauthorized modified versions of the Product, including without limitation, for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Product; or (xi) use the Product in any way that is contrary to applicable laws including, without limitation, privacy, data protection, electronic communications and anti-spam legislation. Tebi retains all title to and, except as expressly licensed herein, all rights to the Product, all copies, derivatives and improvements thereof, and all related materials.
The Agreement is entered into for an indefinite period of time, beginning on the effective date of the Agreement.
5. Customer’s Representations.
Customer represents and warrants that currently and throughout the term of the Agreement (i) Customer is fully authorized to enter into the Agreement and that Customer and any Users are fully authorized to utilize the Product, (ii) Customer and any Users are and will remain in compliance with all Tebi policies, applicable laws and regulations with respect to its and their use of the Product and activities related to the Agreement, including but not limited to fiscal and privacy laws; and (iii) if Customer or any of its Users imports lists into the Product for the purpose of sending electronic communication (e.g., email, text messages), or otherwise collects electronic addresses for the purpose of sending electronic messages, then Customer warrants that each person on such list has previously opted-in to receive promotional electronic communications from Customer (where applicable) and that the content of such communications by Customer will comply with applicable laws and regulations.
6. Customer Data and Privacy.
- “Customer Data” means any data that Customer or its Users input into the Product for processing in connection with the Agreement, including any personally identifiable information (“Personal Data”) forming part of such data.
- Customer may select the Personal Data it inputs into the Product at its sole discretion; Tebi has no control over the nature, scope, origin, and/or the means by which Customer acquires Personal Data processed through the Product. Customer is solely responsible for ensuring that it complies with any legal, regulatory or similar restrictions applicable to the types of data Customer elects to process through the Product. Customer remains responsible for properly handling and processing notices regarding Personal Data of Customer’s customers and Users.
- Customer understands and agrees that Tebi is not responsible for any loss or corruption of Customer Data.
Customer agrees that any materials that it provides to Tebi, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, modifications, improvements, original or creative materials or other information regarding Tebi or the Product, whether such materials are provided in email, feedback forms, or any other format (the “Feedback”), shall belong exclusively to Tebi, without any requirement to acknowledge or compensate Customer. Customer agrees to assign, and hereby assigns, all rights, title, and interest worldwide in and to the Feedback and the related intellectual property rights to Tebi and agrees to assist Tebi, at Tebi’s expense, in perfecting and enforcing such rights. Tebi may disclose or use Feedback for any purposes whatsoever without any obligation to Customer.
8. Third-Party Services.
“Third-Party Services” are products, applications, services, software, networks, systems, directories, websites, databases and information from third parties, that the Product links to, or which Customer may connect to or enable in conjunction with the Product. Customer may decide to enable, access or use any Third-Party Services (as defined above). Customer agrees that access and use of such Third-Party Services shall be governed solely by the terms and conditions of such Third-Party Services, and that Tebi is not responsible or liable for, and makes no representations or warranties as to any aspect of such Third-Party Services, including, without limitation, their content or data practices (including with regards to Customer Data and Personal Data) or any interaction between Customer and the provider of such Third-Party Services, regardless of whether or not such Third- Party Services are provided by a third party that is a member of a Tebi partner program or otherwise designated by Tebi as “certified”, or “approved” by or “integrated” with Tebi. Any use by Customer of Third-Party Services shall be solely between Customer and the applicable third-party provider. Customer irrevocably waives any claim against Tebi with respect to such Third-Party Services. Tebi is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access or use of any such Third-Party Services, or Customer’s reliance on the privacy practices, data security processes or other policies of such Third- Party Services.
9. Termination and Suspension.
- Either party may terminate the Agreement by giving the other party 30 days’ written notice (a “Termination Notice”).
- Notwithstanding the foregoing, Tebi may terminate the Agreement forthwith if Tebi, in its sole discretion, believes: (i) such termination is required by law; (ii) there is a security or privacy risk to Customer; (iii) Customer is infringing or violating the rights of third parties, or acting in a manner that is abusive, profane or offensive; or (iv) Customer is in breach of any material provision of the Agreement, including its License restrictions.
- Upon termination of the Agreement, Customer shall discontinue its use of the Product. Customer agrees that Tebi shall not be liable to Customer nor to any third party for any termination of Customer’s access to the Product in accordance with the Agreement. Sections discussing License restrictions, Customer’s representations, indemnification, and limitation of liability shall survive termination of the Agreement, along with any other provisions that are intended by their terms to survive termination of the Agreement.
Customer shall indemnify, defend and hold harmless Tebi and its officers, employees, and agents from and against all losses, expenses, liabilities, damages and costs including, without limitation, reasonable attorneys’ fees (collectively “Costs”), to the extent that such Costs are attributable to any breach by Customer or any User, independent contractor, or affiliate thereof, of any representations, warranties or other obligations set forth in the Agreement.
11. Limitation of Liability.
In no event shall Tebi be liable for any loss or damage of any kind howsoever arising and whether caused by tort (including negligence), breach of contract or otherwise (including, without limitation, damages for loss of income, loss of business profits or contracts, loss of production, business interruption, loss of the use of money or anticipated savings, loss of business information, loss of opportunity, loss of revenues, interest, capital, financing, goodwill or reputation, opportunity or productivity, loss of, damage to or corruption of data or any other pecuniary loss) arising out of the use of or inability to use the Product, even if Tebi has been advised of the possibility of such loss or damage.
12. Disclaimer of Warranties.
The Product is provided to Customer ‘as is’. Tebi does not warrant to Customer that the Product will perform in accordance with the functions described in the accompanying documentation (if any). Customer acknowledges that the Product has not been developed to meet Customer’s individual requirements and that it is therefore Customer’s responsibility to ensure that the facilities and functions of the Product as described in the accompanying documentation (if any) meet Customer’s requirements. Customer acknowledges that the Product may not be free of bugs or errors and that the use of the Product may not be uninterrupted. Customer agrees that the existence of any errors shall not constitute a breach of the Agreement. Tebi and its suppliers disclaim all warranties and conditions with regard to or arising out of the Product, either express or implied, including, but not limited to, implied warranties of merchantability, interoperability, fitness for a particular purpose, non-infringement and/or accuracy of information.
13. Assignment and Subcontractors.
Customer may not assign any of its rights or obligations under the Agreement without Tebi’s prior written consent. Tebi may, without Customer’s prior consent, assign its rights and obligations under the Agreement. Subject to the foregoing, the provisions of the Agreement shall be binding on and inure to the benefit not only of the parties hereto but also to their successors and permitted assigns. Tebi shall be free to perform all or any part of the Agreement through one or more subcontractors.
14. Governing Law and Dispute Resolution.
- The Agreementshall be governed by and construed in accordance with the laws of the Netherlands.
- Any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether pre-existing, present or future) arising out of or relating to: (i) the Agreement; (ii) the Product or any other services provided by Tebi; (iii) oral or written statements, or advertisements or promotions relating to the Agreement or to the Product or any other services provided by Tebi; or (iv) the relationships that result from the Agreement, will be determined by the courts of Amsterdam, the Netherlands.
- Notwithstanding the foregoing provisions, each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.
- If one or more of the provisions of the Agreement is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, then the validity, legality and enforceability of the remaining provisions of the Agreement shall be unaffected.
- Tebi may provide any and all notices, statements and other communications to Customer through either email, posting on its website, an in-product message, or by mail or express delivery service. During the term of the Agreement, Customer grants Tebi a free license to use, reference and display the Customer’s name and trademarks in any communications, including publications, press releases, stories, websites, social media posts, and public filings in connection with the promotion, marketing, distribution and public disclosure of the Tebi brand, activities and Products.
- Neither party shall be deemed in default or otherwise liable for any delay in or failure of its performance under the Agreement by reason of any act of God, fire, natural disaster, accident, act of government, shortage of materials, failure of transportation or communication or of suppliers of goods or services, or any other cause to the extent it is beyond the reasonable control of such party.
- Tebi reserves the right, at any time and upon thirty (30) days’ written notice, to amend the Agreement, including making changes to the scope of the Product.