Ergonode Master Subscription Agreement
This Master Subscription Agreement (“Agreement”) governs the Subscriber’s purchase and use of the Ergonode Service, as defined below. Capitalized terms have the definitions set forth herein. By executing an Order Form that references to this Agreement, the Subscriber is accepting and agreeing to the terms of this Agreement. Subscriber and Ergonode may be referred to individually as “Party” and collectively as “Parties”. If the individual accepting the Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity to these terms and conditions. The Agreement is effective as of the date Subscriber signs an Order Form and will remain in effect until terminated as provided in this Agreement.
For the avoidance of doubt, this Agreement does not apply to the enterprise plan, which is governed by a separate agreement.
1. DEFINITIONS
1.1. “Account” means an account created for Subscriber, Authorized Users and/or Business Units for the purpose of providing access to the Service.
1.2. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party. As used herein “Control” means the legal or equitable ownership of at least a majority of the voting equity interests in such entity.
1.3. “API“ means the Application Programming Interface provided by Erdonode to Subscriber.
1.4. “Authorized User” means any employee or contractor of the Subscriber or Business Unit authorized to access and use the Service, as described herein.
1.5. “Business Unit” means the Subscriber itself, a brand, division and/or an Affiliate which is identified in an Order Form for which the Service may be used under this Agreement.
1.6. “Confidential Information” means any non-public information that is identified as or would be reasonably understood to be confidential and/or proprietary as disclosed by a Party (“Discloser”) to another Party (“Recipient”). Confidential Information includes, but is not limited to: (a) the Service including any related software code and Documentation; (b) the terms of this Agreement including all Order Forms and related pricing; (c) roadmaps, product plans, product designs, architecture, technology and technical information, security audit reviews, business and marketing plans and business processes, and (d) any and all confidential and/or proprietary data and information relating to or concerning third parties (including but not limited to licensors and customers), however disclosed. Subscriber Content is not considered Confidential Information and therefore not covered by section 6, but is regulated under section 3 in the Agreement. Confidential Information shall not include information that was (i) at the time of disclosure, through no fault of the Recipient, already known and generally available to the public; (ii) at the time of disclosure to Recipient already rightfully known to the Recipient without any obligation of confidentiality; (iii) disclosed to the Recipient by a third party who had the right to make the disclosure without any confidentiality restrictions; or (iv) independently developed by the Recipient without access to or use of the Discloser’s Confidential Information.
1.7. “Documentation” means the materials describing the features and functions of the Service as may be updated from time to time by Ergonode.
1.8. "Initial Term” means twelve (12) months from Start Date, unless otherwise agreed in the Order Form.
1.9. “Ergonode/Us” means Ergonode Sp. z o.o. headquartered at Zygmunta Miłkowskiego 5/2U, 30-349 Kraków, Poland as the contracting Party that will provide the Services to Subscriber.
1.10. “Intellectual Property” means all intellectual property rights worldwide whether registered or unregistered including copyrights, patents, patent applications, trademarks, service marks, trade secrets, and all other proprietary rights.
1.11. “Malware” means any software program or code intended to harm, destroy, interfere with, corrupt, or cause undesired effects on program files, data, or other information, executable code, or application software macros.
1.12. “Order Form” means a mutually agreed ordering document specifying the Services to be provided hereunder that is entered into between the Subscriber and Ergonode, including any addendums thereto.
1.13. “Platform” refers to the product information management system known as “Ergo” or “Ergonode” This includes all components, modules, relevant functionalities, content (excluding content supplied by the Subscriber), ideas, features, and associated documentation. It also encompasses all updates and modifications made to the platform.
1.14. “Professional Services” refers to training, consulting, entry data analysis, creating a data schema, and/or custom services to be provided by Us.
1.15. "Renewal Term" as defined in 10.1.
1.16. “Service” refers to all services provided or made available to the Subscriber by Us under the Agreement, Order Form, or any Subscription Plan. These services include but aren’t limited to the access and functionality of the Platform, the Support Plan, and Professional Services if applicable, ordered by the Subscriber. Excluded from the scope of services is the provision of plug-ins that are not prepared by the Ergonode.
1.17. "Start Date" shall mean what is set forth in an Order Form.
1.18. “Subscriber Content” means all Subscriber’s data transmitted to, stored in or made available by Subscriber and/or its Business Unit(s) and its Authorized Users in connection with use of the Service.
1.19. “Subscriber” means the entity specified in an Order Form as being the contracting party to this Agreement.
1.20. “Subscription Fee” means the fees charged by Ergonode as identified in an Order Form or an invoice issued by Ergonode for the Services.
1.21. “Subscription Plan” refers to the subscription that Subscriber can choose in Order Form to subscribe to gain access to the Platform. Prices may vary depending on the currency selected.
1.22. “Support Plan” means the support services for the Service as described in 2.7.
1.23. "Subscription Term" means the duration of Initial Term and/or Renewal Terms.
1.24. “Content” means to materials sent by Provider to the Service in order to have it processed by the machine AI generation & translation infrastructure.
2. ACCESS AND USE OF THE SERVICE
2.1. Access to the Service. Subject to Subscriber’s compliance with the terms of this Agreement, Ergonode hereby grants to Subscriber the right to access and use the Service and the Documentation for the internal business purposes for such Business Units as specified in an Order Form on a limited, revocable, non-exclusive, non-transferable, without territorial restrictions and for the duration of the Agreement, on the basis in accordance with the scope identified in an Order Form. Ergonode will provide Subscriber with a primary administrator Account for managing and granting access to its Authorized Users and Subscriber is responsible for activating them.
The above license cover the following fields of exploitation:
a) Fixing, displaying and using the Service and the Documentation in accordance with its intended purpose and functionality; b) to reproduce the Documentation in whole or in part by any means in any form for the training needs of its own employees; c) saving Documentation to the memory of a computer or other electronic devices; d) using the Service and the Documentation only for the purposes of the business activity conducted by the Subscriber.
2.2. Restrictions. Access by Subscriber to the Service is subject to the following conditions:some text
2.2.1. Subscriber will not: (i) resell or sublicense the Service; (ii) decompress the Service; (iii) modify, disassemble, reverse compile, reverse assemble, reverse engineer, or translate any portion of the software related to the Service; (iv) use the Service in violation of applicable law or the rights of others; (v) perform any vulnerability or penetration testing of the Service, if they are not expressly ordered by Ergonode; (vi) cause harm in any way to the Service or cause Malware to harm the Service; (vi) work around the Service’s technical limitations; (vii) make the Service available to any person other than Authorized Users; (viii) modify and/or create derivative works based upon the Service; (ix) access the Service and/or use the materials provided hereunder in order to build a similar competing product; (x) send any unsolicited or unauthorized advertising, promotional materials, email, junk mail or spam mails using the Service; (xi) use the Service as a host for assets to retailers or other parties (referred to as “Hot Linking”, such as presenting an image on an e-commerce site by referencing an URL hosted by Ergonode or its subcontractors); (xii) attempt to access or search the Service or Subscriber Content or download Subscriber Content from the Service through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than functions provided in the Service or other generally available third-party web browsers unless it is accepted by the Ergonode; and (xiii) when using the Evaluate service within the Service, use the update function in the Service more than reasonably necessary.
2.2.2. Subscriber will not intentionally or negligently access or use the Service in a way that: (i) may reasonably have been expected to adversely affect the security, stability, performance or functions of the Service; (ii) create a risk of harm or loss to any person or property; (iii) constitutes or contributes to a crime or tort; (iv) is illegal, unlawful, harmful, pornographic, defamatory, infringing, or invasive of personal privacy or publicity rights; or (v) infringes any third party rights.
2.2.3. Ergonode may suspend the Service or part of it if Ergonode determines, that suspension is necessary to protect Subscriber, other subscribers and the Service from operational, security, or other material risk, or if the suspension is ordered by a court or other tribunal. In such event, Ergonode will provide notice of suspension to Subscriber as soon as reasonably practicable.
2.3. Account Use. Subscriber is responsible for maintaining and keeping confidential its Account information, including passwords, usernames and email addresses. If Subscriber becomes aware of: (i) any violation of the terms of this Agreement by an Authorized User or unauthorized access to an Account; or (ii) any compromise to an Account including unauthorized access to or disclosure of any Account information, passwords, usernames or login credentials, Subscriber must promptly suspend such access and immediately notify Ergonode. If Subscriber becomes aware that any Subscriber Content violates the terms of this Agreement, Subscriber must promptly remove such Subscriber Content.
2.4. Authorized Use. Subscriber may permit Authorized Users to use the Service on behalf of and for the internal business purpose of the Subscriber and/or its Business Unit(s), according to the scope set out in an Order Form, and in accordance with the terms and conditions of this Agreement provided that Subscriber is responsible for the use of the Service, including any breaches of this Agreement, by an Authorized User. Subscriber may authorize third parties to assist in the management and editing of product information created by the Service, provided that: (i) such activities are within the scope of the activities Subscriber is authorized to perform under this Agreement and (ii) such third party’s acts are for the direct benefit of the Subscriber and/or its Business Unit(s). Subscriber is prohibited from using the Service as an application software provider, or in any timesharing, service bureau, or other commercial arrangement of any kind that makes the Service available to third parties for the third party’s own uses.
2.5. API. The Service may include access to certain API’s and will be identified in the applicable Order Form. Ergonode grants Subscriber a limited, non-exclusive, revocable and non-transferable license to use the API’s as set forth in the Order Form and solely in relation to its access to and use of the Service during the applicable Subscription Term. Notwithstanding anything herein to the contrary, Ergonode shall have no liability for: (i) the functionality of the API’s, or loss of access to any API’s, if any third-party APIs or services are changed or discontinued; (ii) the API’s in case the Subscriber alters or modifies any source code which Ergonode may give or directed Subscriber access to related to the API’s or other sub-components; nor (iii) any Subscriber Content transferred to a third party. Certain API’s require a valid subscription or license to the third party service to which the API’s links and Subscriber shall be liable for all costs related thereto. Subscriber, on behalf of itself and its Authorized Users, represents and warrants that it has all requisite rights to access such third party services in connection with its use of the API’s.
2.6. Business Units. The Subscriber shall be responsible and liable for its Business Units’ compliance with Subscriber's obligations under the terms and conditions of this Agreement as its own. The Subscriber is in relation to Ergonode liable for all actions and omissions by any of its Business Units. If a Business Unit authorized under an Order Form ceases to be a Business Unit of the Subscriber, such entity shall no longer have the right to use the Service under this Agreement and Subscriber is responsible to ensure that all relevant software and documentation is returned to the Subscriber or Ergonode and that the relevant Business Unit ceases to use the Service. Subscription Fee shall not be impacted during Subscription Term for such situation.
2.7. Support Plan. Ergonode will provide support for the Service in accordance with the Ergonode Support Plan on www.ergonode.com/terms/support-sla
2.8. Reservation of Rights. Except for the limited rights expressly granted herein Ergonode, its Affiliates and licensors retain all right, title and interest in all Intellectual Property Rights and technology related to Ergonode’s proprietary products including without limitation the Service. Subscriber and its Authorized Users shall preserve and keep intact all Ergonode copyright, patent and/or trademark notices presented in connection with the Service. Subscriber shall not assert any implied rights in or to any of Ergonode’s and/or its licensors’ Intellectual Property Rights.
2.9. Feedback. Subscriber and Authorized Users may provide suggestions, ideas, enhancement requests or other information on their use of the Service (“Feedback”). Subscriber agrees that Ergonode and its licensors shall have the right to use such Feedback without any restrictions and without any payment to Subscriber.
2.10. Modifications to Service. Ergonode shall be entitled to make modifications to the Service or particular components of it (including the Documentation) and the Support Plan from time to time provided that such modifications do not materially degrade any functionality or features of the Service or the level of security.
2.11. Usage Limitations. Subscriber acknowledges that access and use of the Service is granted to the Subscriber for use up to the number of channels, markets, Business Units, environments, the amount of applicable storage, or other metrics purchased by the Subscriber and set forth and described on the applicable Order Form (the “Usage Limitations”). In the event that the Service is used in excess of the Usage Limitations, without prejudice to Ergonode’s other rights and remedies, Subscriber is obligated to promptly notify and shall (i) pay Ergonode for such additional services at Ergonode’s then current rates for any change to the Service agreed by Ergonode, such change to be set out in a change Order Form and (ii) immediately cease any use of the Service in excess of the Usage Limitations for which Ergonode does not agree.
2.12. Audit. To verify that Subscriber’s use of the Service is within the applicable Usage Limitations and in conformity with the Order Form, Ergonode may, from time to time, request Subscriber to accurately certify and provide evidence of Subscriber’s compliance with the applicable Usage Limitations and Order Form(s). Subscriber shall provide such information promptly. In strict compliance with the Confidentiality clause (in section 6), Subscriber hereby authorizes Ergonode to access the Subscriber’s environments and Subscriber Content at any time for the purposes of verifications, tests, continuous improvement or resolution of anomalies or incidents, or control of use of the Service. If the audit reveals a use of the Service exceeding the Usage Limitations, Ergonode, without prejudice to its other rights and remedies, shall be entitled to charge, in addition to the sums due pursuant to paragraph (i) of Section 2.11, an additional fee amounting to 10% of the Subscription Fee that should have been paid for the Service used in excess of the Usage Limitations.
2.13. All rights regarding the Content remain with Subscriber. However, Subscriber grants Ergonode the non-exclusive worldwide right to use the Content solely in order to provide Services to Subscriber. In particular, Subscriber grants to Ergonode the right to temporarily store, modify, process, translate and transmit the Content, and to sublicense the foregoing rights to its subcontractors and third parties, to the extent required to provide the services set out in this Agreement.
2.14. The Subscriber may use Services free of charge. The provisions of this Agreement shall apply mutatis mutandis to the free of charge use of Services with the relevant modifications indicated in Appendix 1 to the Agreement.
3. SUBSCRIBER CONTENT
3.1. Ownership. Subscriber represents and warrants that Subscriber or its Affiliate(s) own all Subscriber Content or have permission from the rightful owner to use each of the elements of Subscriber Content and that Subscriber or its Affiliate(s) have all rights necessary to use the Subscriber Content in connection with the Service. Subscriber and/or its Affiliate(s) shall retain ownership of Subscriber Content and any derivative works thereof. Subscriber may, at all time during the Subscription Term, import, export, download and delete all Subscriber Content from the Service. Subscriber acknowledges and agrees that Ergonode utilizes third-party service providers to host and provide the Service and store Subscriber Content. Notwithstanding anything to the contrary contained herein, Ergonode and/or its licensors reserves the right to compile, collect, copy, modify, publish and use anonymous and aggregate data generated from Subscriber’s use of the Service for analytical and other business purposes and shall own all right, title and interest therein.
3.2. Protection of Subscriber Content. Ergonode will maintain, as part of the Service, commercially reasonable administrative and technical safeguards designed to secure Subscriber Content against accidental or unlawful destruction, access, loss, alteration or disclosure and shall ensure that industry standard cyber security measures are in place to keep the Service free from Malware. Subscriber Content is backed up regularly everyday as protection against accidental or intentional data destruction (see more about Ergonode security in section 4.2 below). Subscriber is responsible to ensure that the Subscriber Content remains in compliance with applicable law and shall ensure that industry standard cyber security measures are in place to keep Subscriber Content free from Malware.
3.3. Access. Subscriber hereby authorizes Ergonode and its subcontractors to access Accounts and grants Ergonode a worldwide, non-exclusive right and license to use, modify, reproduce, display and disclose Subscriber Content solely to the extent necessary to provide the Service and meet Ergonode’s obligations under this Agreement, including responding to Subscriber’s support requests. Any subcontractors Ergonode utilizes will only be given access to the Account and Subscriber Content to the extent reasonably necessary to provide the Service and will be subject to confidentiality obligations. Ergonode shall be responsible for its subcontractors’ actions and omissions.
4. PRIVACY
4.1. Privacy and Data Protection. Ergonode complies with applicable data protection legislation, including the EU General Data Protection Regulation 2016/679 (”GDPR”). Ergonode will not process nor collect any personal data from the Subscriber, its Affiliates and Authorized Users other than what is necessary for Ergonode to provide the Service, this includes the collection of name, email address, password and log of use of Service for each Authorized User. Since the processing is necessary for the functioning of the Service and that the collection of personal data is not a key element of the Service, all such processing is done by Ergonode as the Controller according to GDPR. Subscriber shall not use Service in any way to store any personal data and Ergonode will not process any personal data on behalf of Subscriber. Ergonode Service is provided subject to Ergonode Privacy Notice at www.ergonode.com/privacy-policy updated from time to time.
4.2. Ergonode Security The hosting environments used by Ergonode, are operated by suppliers who comply with ISO 27001 standards, confirmed by the applicable certificates.
5. PAYMENT
5.1. Subscription Plans
We provide Subscriber access to our Platform. This access can be obtained through a Subscription Plan defined in www.ergonode.com website. These Subscription Plans can differ in terms such as the extent of Platform functionality accessible to Subscribers, the fees imposed on the Subscribers, and the schedule of these charges. Detailed descriptions and listings of these Subscription Plans can be found on www.ergonode.com/pim/pricing.
The Subscriber understands that the use and access to the Platform is granted for a specific number of users, applicable environments, storage capacity, or other metrics that the Subscriber has purchased and are detailed in the relevant Purchase Order. The Subscriber also has the option to add licenses for additional users, production environments, storage, etc., by executing a new Purchase Order at any time.
We may introduce enhancements and additional features and functionality at our own discretion. Certain features and functionality might only be accessible with specific versions or editions of the Subscription Plan and could be subject to extra charges or additional terms and conditions. The Subscriber acknowledges that their purchases under Purchase Order are not reliant on the provision of any future features or functionality, nor are they dependent on any verbal or written statements made by Ergonode about future features or functionality.
5.2. Fees. Payment shall be made to Ergonode within thirty (30) days as from the date of invoice, unless otherwise provided in the Order Form. Subscriber is aware that payment obligations are non-cancelable and Subscription Fees paid are non-refundable, except as contained in paragraph 8.2 and 10.3. Quantities purchased and specified in an Order Form cannot be decreased during the relevant Subscription Term. For Services that are subject to fees based on consumption/usage and/or that includes consumption/usage limitations, any overage will be invoiced separately based on the then current pricelist following the overage has been made by Subscriber. All other invoicing as well as payments shall be completed in advance of each corresponding payment period (as set forth in the order Form) and before such period starts (first invoice may be an exception depending on Start Date). Ergonode shall have the right to assess a late interest on any overdue amount equal to the lesser of: (i) 1.5% of the outstanding balance per month; or (ii) the highest rate allowed by applicable law. In the event that Ergonode would seek legal recourse for the collection of any unpaid Subscription Fees from Subscriber, after sent at least two reminders, Ergonode will be entitled to an award of reasonable attorney’s fees and other costs incurred by Ergonode in such matter. If any Subscription Fee is overdue by more than thirty (30) days, Ergonode may, without limiting its other rights and remedies, suspend the Services until such amounts are paid in full. Ergonode shall not be held liable for any loss and/or damage suffered by Subscriber, its Affiliates and/or its Authorized Users as a result of such suspension. Any amounts due by Ergonode to Subscriber may not be setoff against any current or future Subscription Fees due to Ergonode. Subscriber is responsible for providing complete and accurate billing and contact information to Ergonode and notifying Ergonode of any changes to such information.
5.3. Renewal and Index. Ergonode will, without prior written notice, increase the Subscription Fee once per year with three (3) percent and additional positive indexation published by Eurostat for the Eurozone.
5.4. Purchase Order. If Subscriber requires specific purchase order information on the invoice from Ergonode, Subscriber shall be responsible to provide all such information to Ergonode by email at invoice@ergonode.com at the latest on i) the Start Date regarding the first payment period, and ii) 10 days prior to the agreed payment term for the following invoices. The Subscriber acknowledges and agrees that delays in providing the Purchase Order Information shall not impact the applicable payment due date. For the avoidance of doubt, any terms and conditions set forth on a purchase order shall not apply.
5.5. Taxes. The Subscription Fee does not include any levies, duties excise, sales, use, value added or other taxes, tariffs or duties that may apply to the Service (“Taxes”). Subscriber is responsible for paying all Taxes associated with its purchases hereunder. If Ergonode has the legal obligation to pay or collect Taxes for which Subscriber is responsible, Subscriber will pay that amount unless Subscriber provides Ergonode with a valid tax exemption certificate authorized by the applicable taxing authority. For clarity, Ergonode is solely responsible for taxes assessable against it based on its income, property and employees.
6. CONFIDENTIALITY
6.1. Obligations. Each Party will hold the other Party’s Confidential Information in confidence with at least as much care as it holds its own Confidential Information, and neither Party will disclose any of the other Party’s Confidential Information to any third party. Each Party may use the Confidential Information solely for purposes of its performance under this Agreement, and may disclose such information to its employees, subcontractors and professional advisors only on a need-to-know basis, provided that such employees, subcontractors and professional advisors are bound by obligations of confidentiality at least as restrictive as those set forth in this Agreement.
6.2. Required Disclosure. If the Recipient is requested or required to disclose any of the Discloser’s Confidential Information under a subpoena, court order, statute, law, rule, regulation or other similar requirement (a "Legal Requirement"), the Recipient will, if lawfully permitted to do so, provide prompt notice of such Legal Requirement to the Discloser so that the Discloser may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Agreement. If the Discloser is not successful in obtaining a protective order or other appropriate remedy and the Recipient is legally compelled to disclose such Confidential Information, or if the Discloser waives compliance with the provisions of this Agreement in writing, the Recipient may disclose, without liability hereunder, such Confidential Information solely to the extent necessary to comply with the Legal Requirement.
6.3. Disposition of Confidential Information on Termination. Upon termination or expiration of this Agreement or upon the Discloser’s written request, the Recipient will, except for any Subscriber Content, return to the Discloser all copies of Confidential Information already in the Recipient’s possession or within its control. Alternatively, upon prior written notice, the Recipient may destroy such Confidential Information; provided that the Confidential Information is (i) destroyed in accordance with applicable law, rule or regulation and (ii) is rendered unreadable, undecipherable and otherwise incapable of reconstruction, in which case a representative of the Recipient will certify in writing to the Discloser that all such Confidential Information has been so destroyed. The obligations with respect to Confidential Information, as set forth in this section 6, shall continue in force and effect for a period of five (5) years after termination or expiration of this Agreement or, with respect to such portions of such Confidential Information that constitute trade secrets under applicable law, for so long as such trade secret status is maintained.
6.4. Remedy. Each Party acknowledges that a breach of this section 6 may result in irreparable and continuing damage to the Discloser for which monetary damages may not be sufficient and agrees that the Discloser will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction.
7. WARRANTIES
7.1. Mutual Warranties. Each Party represents and warrants to the other Party throughout the Subscription Term that: (i) it is a business organization duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that the execution and performance of the Agreement, or use of the Service, will not conflict with or violate any provision of any law having applicability to such Party; and (iii) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
7.2. Ergonode Warranty. Ergonode warrants throughout the Subscription Term that: (i) this Agreement, the Order Form(s) and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Subscriber Content, (ii) Ergonode will not materially decrease the overall security of the Services, and (iii) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Ergonode shall, at its option, either modify the Services or provide a workaround solution to comply with the above warranty, within a commercially reasonable time. If neither option is achievable within the above time frame Subscriber is, subject to section 9, entitled to damages suffered due to the breach. The above shall be the Subscriber’s sole and exclusive remedies.
7.3. Disclaimer. EXCEPT FOR EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, ERGONODE MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED IN FACT OR BY OPERATION OF LAW, OR STATUTORY, AS TO ANY MATTER WHATSOEVER. Ergonode EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Ergonode DOES NOT WARRANT THAT THE SERVICES (INCLUDING ANY SUPPORT SERVICES) WILL BE COMPLETELY ACCURATE OR ERROR FREE OR WILL MEET SUBSCRIBER’S REQUIREMENTS. SUBSCRIBER WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATIONS OR WARRANTY ON BEHALF OF Ergonode TO ANY THIRD PARTY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES AND, SUPPORT SERVICES ARE PROVIDED "AS IS." Ergonode IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER LOSS OR DAMAGE RESULTING FROM (A) TRANSFER OF DATA OVER COMMUNICATION NETWORKS SUCH AS THE INTERNET AND/OR (B) INABILITY TO ACCESS OR GET ACCURATE DATA FROM THIRD-PARTY SYSTEMS AND/OR APPLICATIONS THAT THE SERVICE IS DEPENDENT ON.
8. INDEMNIFICATION
8.1. Ergonode Indemnification. Ergonode will, at its expense, defend Subscriber against any claim, demand, suit or proceeding made by a third party alleging that the Service infringes the intellectual property rights of such third party and will pay all costs or damages that are finally awarded to such third party by a court of competent jurisdiction (including reasonable attorneys’ fees) or agreed to in a written settlement signed by Ergonode. Subscriber will: (i) notify Ergonode in writing within thirty (30) calendar days of its receipt of notice of the claim; (ii) give Ergonode sole control of the defense and settlement of the claim (except that Ergonode will not settle any claim that results in liability or an admission of liability by Subscriber without Subscriber’s prior written consent); and (iii) provide Ergonode with all reasonable assistance, information, and authority necessary to perform Ergonode’s obligations under this paragraph. Notwithstanding the foregoing, Ergonode will have no liability for any claim of infringement or misappropriation to the extent such claim arises from: (a) use of the Service in combination with materials including software, hardware or content not furnished by Ergonode and the Services or use thereof would not infringe without such combination; (b) Subscriber Content; or (c) Subscriber’s breach of this Agreement.
8.2. Remedies. In the event the Service is held or is believed by Ergonode to infringe or misappropriate any Intellectual Property Right of a third party, Ergonode will have the option, at its expense, to: (i) replace the Service with a non-infringing equivalent; (ii) modify the Service to be non-infringing; (iii) obtain for Subscriber a license to continue using the Service; or if options (i) – (iii) are not possible or commercially reasonable (iv) terminate the Agreement and refund any prepaid fees for Service not yet provided for the remainder of the Subscription Term. The foregoing remedies constitute Subscriber’s sole and exclusive remedies and Ergonode’s sole liability with respect to any third-party infringement claim.
8.3. Subscriber Indemnification. Subscriber will, at its expense, defend Ergonode against any claim, demand, suit or proceeding made by a third party alleging that the Subscriber Content infringes the intellectual property rights of such third party or that Subscriber would not have such requisite rights to access such third party services in connection with its use of the API as represented and warranted under section 2.5 and will pay all costs, losses or damages that are finally awarded by a court of competent jurisdiction (including reasonable attorneys’ fees) or agreed to in written settlement signed by Subscriber. Ergonode will: (i) notify Subscriber in writing within thirty (30) calendar days of its receipt of notice of the claim; (ii) give Subscriber sole control of the defense and settlement of the claim (except that Subscriber will not settle any claim that results in liability or an admission of liability by Ergonode without Ergonode’s prior written consent); and (iii) provide Subscriber with all reasonable assistance, information, and authority necessary to perform Subscriber’s obligations under this paragraph.
8.4. Loss Mitigation and Participation. The indemnified Party acknowledges and agrees that it shall use commercially reasonable efforts to mitigate the costs and expenses related to such claim. The indemnified Party may reasonably participate in such defense, at its sole expense.
9. LIMITATION OF LIABILITY
9.1. Excluded Damages.EXCEPT WITH RESPECT TO DAMAGES CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE OTHER UNDER THIS AGREEMENT OR ANY ORDER FORM FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, OR COSTS LINKED TO THE PERFORMANCE BY A THIRD PARTY OF THE OTHER PARTY’S OBLIGATION UNDER THIS AGREEMENT, OR FOR ANY LOSS OF USE, PROFITS, REVENUE OR GOODWILL, WHETHER AN ACTION IS BASED IN CONTRACT, TORT OR OTHERWISE, REGARDLESS OF WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. Limitation of Liability. EXCLUDING EITHER PARTY’S OBLIGATIONS PURSUANT TO SECTION 6 (CONFIDENTIALITY) AND SECTION 8 (INDEMNIFICATION), AS WELL AS DAMAGES CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, TO THE EXTENT PERMITTED BY LAW, THE AGGREGATE AND CUMULATIVE LIABILITY OF EITHER PARTY INCLUDING ALL THEIR AFFILIATES RESULTING FROM OR IN RELATION TO THIS AGREEMENT OR ANY ORDER FORM, (REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT INCLUDING BUT NOT LIMITED TO NEGLIGENCE) SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE UNDER THE RELEVANT ORDER FORM BY SUBSCRIBER IN THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. ERGONODE SHALL HAVE NO LIABILITY FOR ANY LOSS OR DAMAGE ARISING FROM SUBSCRIBER’S AND/OR ITS AUTHORIZED USERS FAILURE TO COMPLY WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. ERGONODE ALSO ASSUMES NO RESPONSIBILITY FOR THE PROVIDER’S USE OF THIRD-PARTY APPLICATIONS DEVELOPED BY BUSINESS PARTNERS USING ERGONODE'S API AND APPS FRAMEWORK. IN PARTICULAR, PROVIDER IS NOT RESPONSIBLE FOR THE PROPER FUNCTIONING OF SUCH APPLICATIONS DEVELOPED BY THIRD PARTIES AND DOES NOT WARRANT THEM, NOR DO ERGONODE MAINTAIN THEM.
9.3. Liability to Affiliates and Authorized Users. ANY LOSS OR DAMAGE INCURRED BY A SUBSCRIBER’S AFFILIATE OR AUTHORIZED USER RESULTING FROM AN ACT OR OMISSION OF ERGONODE WILL BE TREATED AS A LOSS OF OR DAMAGE TO THE SUBSCRIBER UNDER THIS AGREEMENT AND THE SUBSCRIBER ALONE WILL HAVE THE RIGHT TO MAKE A CLAIM FOR ANY SUCH LOSS OR DAMAGE UNDER THIS AGREEMENT ON BEHALF OF THE RELEVANT AFFILIATE OR AUTHORIZED USER SUBJECT TO THE RELEVANT LIMITATIONS OF LIABILITY.
9.4. Claims. THE PARTIES MUST, IN ORDER TO PRESERVE ITS RIGHT TO COMPENSATION, GIVE THE OTHER PARTY NOTICE OF ANY CLAIM WITHIN THREE (3) MONTHS FROM WHEN THE AFFECTED PARTY BECAME AWARE OF THE BASIS FOR THE CLAIM.
9.5. Allocation of risks. The limitations of liability and exclusions contained in this Agreement are reflected in the pricing for the Services made available hereunder, they represent an agreed-upon allocation of risk between the parties and are an essential part of this Agreement. This section 9 is also applicable to the insurers of the parties and any recourse (either by direct action or subrogation) by the insurers of either party against the other party or its insurers. Any liability which cannot be excluded or limited by operation of law, notably in case of gross negligence or willful misconduct shall remain applicable, in which event the limitation shall be the minimum amount required by law, if any.
10. TERM AND TERMINATION
10.1. Term. The term of this Agreement will commence on the date Subscriber signs the first Order Form and if not terminated earlier as provided in this Agreement, will continue in effect until the end of the Initial Term and will automatically renew for subsequent renewal terms of 12 months each (“Renewal Term”) unless terminated by either Party by providing the other Party a written notice of termination not later than sixty (60) days prior to the then-current expiration of the Initial Term or Renewal Term, as applicable.
10.2. Termination. Either Party may terminate this Agreement and any Order Form upon written notice to the other Party if: (i) the non-terminating Party materially breaches this Agreement and fails to cure such breach within thirty (30) days of delivery of written notice; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Ergonode may suspend the Service in the event Subscriber is in material breach of this Agreement and such breach has not been cured within thirty (30) days’ written notice to Subscriber. In the event of suspension due to Subscriber’s material breach of this Agreement, Subscriber will remain liable for all Fees applicable to the Subscription Term that would have been paid had the Service not been suspended. The Subscriber’s dissatisfaction with the Services or the services' failure to meet the Subscriber’s business expectations cannot be considered a material breach.
10.3. Effect of Termination. Upon termination, Subscriber, its Affiliates and Authorized Users will cease using the Service and Subscriber will pay (if any) all outstanding fees, charges and expenses incurred through the effective date of termination. In the event this Agreement is terminated by Subscriber for a material breach by Ergonode, Ergonode will refund any prepaid fees for the Service not yet provided to Subscriber. If Subscriber requires assistance in extracting Subscriber Content, Subscriber shall provide a written request to Ergonode no later than fifteen (15) days prior to the end of the Subscription Term, or in case of a termination with immediate effect, within 15 days from such termination. Assistance will be provided against an administrative fee. Upon termination or expiration of this Agreement, all rights granted hereunder to Subscriber related to the Service will cease and Ergonode reserves the right to delete all Subscriber Content.
10.4. Survival. Upon any expiration of the applicable term for the Service or termination of this Agreement, any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement, including without limitation the following sections: 2.9 (Reservation of Rights), 5 (Payment), 6 (Confidentiality), 8 (Indemnification), 9 (Limitation of Liability) and 11 (General Provisions).
11. GENERAL PROVISIONS
11.1. Export Laws. The Services and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Ergonode and Subscriber each represent that it is not named on any
U.S. government denied-party list. Subscriber will not permit any user to access or use any Service or content in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation.
11.2. No Third-Party Beneficiaries. Except as specifically identified in this Agreement, nothing in this Agreement is intended to confer upon any person other than the Parties and their respective successors or permitted assigns, any rights, remedies, obligations or liabilities whatsoever.
11.3. Independent Contractors. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between any of the Parties hereto. Neither Party shall have the power nor authority to control the activities or operations of the other. At all times, the status of the Parties shall be that of independent contractors.
11.4. Force Majeure. Neither Party will be responsible for delays or failures in performance resulting from acts of government, acts of terror, acts of civil military authority, fire, flood, earthquake, labor dispute, epidemics, pandemics, telecommunications or Internet service interruptions or other acts or causes reasonably beyond the control of that Party. The Party experiencing the force majeure event agrees to give the other Party notice promptly following the force majeure event, and to use diligent efforts to re-commence performance as promptly as commercially practicable. Except for obligations of payment of any fees owed, in the event any failure to perform because of a force majeure event remains uncured for a period of 30 days, the other Party may terminate this Agreement, without liability, by providing written notice.
11.5. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld). Notwithstanding the above, the Parties irrevocably consent that the other Party be entitled to assign this Agreement in its entirety (including all Order Forms) to its Affiliate or in connection with a merger, corporate reorganization, or sale or transfer of all or substantially all of its assets, provided that; (i) such assignee can honor the assignor’s obligations under the Agreement, (ii) the assignment does not result in any extended use of the Service; and (iii) the assignee is not a direct competitor of the other Party. The assigning party must notify the other Party in writing without undue delay of such transaction and shall provide all necessary information on the assignee. The assigning Party shall not remain jointly liable with the assignor for its obligations under the Agreement (including all Order Forms) and shall be released from all such obligations as from the date of such transaction, which is hereby irrevocably accepted by the non-assigning Party. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns. Notwithstanding the foregoing, Ergonode shall be entitled to assign its rights to receive Subscription Fees (including interest and other related collection costs) to an external factoring company and the Subscriber will be notified thereof separately. Payment shall in such event be made irrevocably by the Subscriber to such company.
11.6. Governing Law. This Agreement will be governed by the applicable law depending on where Subscriber is domiciled as stated in the below table, without regard to conflict of law principles, and ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT (INCLUDING WITHOUT LIMITATION ANY DISPUTE RELATING TO ITS VALIDITY, INTERPRETATION, PERFORMANCE OR TERMINATION) SHALL BE FINALLY SETTLED, IN POLISH LANGUAGE (Poland) and ENGLISH (the rest territories), AS FOLLOWS:
Domicile
North America, Central America and South America, Europe, Middle East, Africa, Asia, Pacific Region
Governing Law
Poland
Dispute Resolution
Applicable court in Krakow, Poland.
In addition to above, the Parties agree that: i) any claims or counterclaims based on this Agreement shall only be raised by the Subscriber against Ergonode and not a company to which Ergonode may have assigned the right to collect and receive payment; ii) any action for collection of payment obligations may be brought in any court with competent jurisdiction (notwithstanding the contrary above); iii) any claim under this Agreement must be filed within twelve (12) months from when a Party became aware of the basis for the claim (provided that the condition in section 9.4 has been respected); and iv) the Parties unconditionally waives any right to have a jury trial.
11.7. Publicity. Neither Party may issue or make any press release, announcement or publication containing or otherwise use any of the other Party’s trademarks without the other Party’s prior approval; provided that, during the term of this Agreement, Subscriber grants Ergonode the right to use Subscriber’s name and logo to identify Subscriber as a customer on Ergonode’s website and in other Ergonode marketing materials. In addition, if the Subscriber grants Ergonode with consent, the Ergonode may publish a case study.
11.8. Severability & Waiver. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
11.9. Notices. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing to the addresses identified in the Order Form or to the Service administrator, designated by Subscriber. Notices from Subscriber to Ergonode of termination or material breach or violation of the Agreement must be addressed to by email to terminate@ergonode.com with copy to the current designated Ergonode account manager and/or his superior or other persons assigned to the case by Ergonode. Billing-related notices to Subscriber will be addressed to the relevant billing contact provided by Subscriber and notices to Ergonode shall be addressed to invoice@ergonode.com All notices will be considered delivered upon (i) personal delivery, (ii) the fifth business day after mailing, or (iii) the day of sending by email.
11.10. Entire Agreement and order of Precedence. This Agreement contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior agreements, oral or written, and all other communications between the Parties relating to such subject matter. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. This Agreement may not be amended or modified except by mutual written agreement.
Appendix 1 – Free of charge use of Services
1. Ergonode enables the Subscriber to use of services free of charge. Free of charge use of Services is limited by the options of Free plan presented on the page: www.ergonode.com/pim/pricing
2. If the parameters of the free of charge Service are exceeded, Ergonode will inform the Subscriber to switch to a paid plan. If the Subscriber does not make use of this option, Ergonode reserves the right to delete the Subscriber’s account and all data 30 days after sending the message to the Subscriber.
3. By using the free of charge Service, the Subscriber grants ergonode permission to contact him for commercial and marketing purposes.
4. If the Subscriber does not use the Service for 30 consecutive days, Ergonode will call the Subscriber to action and set an additional 14-day deadline. After the expiry of the indicated deadline, Ergonode reserves the right to delete the Subscriber’s account and all data 30 days after sending the message to the Subscriber.
