"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Agreement" or “Terms and Conditions” means this Agreement and all materials referred or linked to in here.
“Confidential Information” means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as confidential. Confidential Information includes all information concerning: the Disclosing Party's customers and potential customers, past, present or proposed products, marketing plans, engineering and other designs, technical data, business plans, business opportunities, finances, research, development, and the terms and conditions of this Agreement. Confidential Information does not include any information that
(i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
(ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,
(iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or
(iv) was independently developed by the Receiving Party. Subject to the foregoing exclusions, Customer Data will be considered Confidential Information under this Agreement regardless of whether or not it is designated as confidential.
"Customer Data" means all information that you submit to the Subscription Service. Customer Data does not include Datapred Content or Third-Party Data.
"Datapred Content" means all Datapred-generated information, data, text, messages, software, photographs, graphics, images, and tags that we incorporate into the Subscription Service.
"Order" or "Order Form" means the Datapred-approved form or online subscription process by which you agree to start the Trial.
“Personal Data” means any information relating to an identified or identifiable individual where such information is contained within Customer Data and is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws.
"Subscription Service" means all of our web-based applications, tools and platforms that you have subscribed to under an Order Form or that we otherwise make available to you, and are developed, operated, and maintained by us, accessible via http://www.datapred.com or another designated URL, and any ancillary products and services that we provide to you.
“Third-Party Data” means data that Datapred uses to deliver the Subscription Services, and that is neither Customer Data nor Datapred Content.
"Third-Party Products and Services" means products and professional services that are provided by third parties which interoperate with or are used in connection with the Subscription Service.
"Trial " means the period during which you can access the Subscription Service, as specified on your Order Form(s), without entering into a full subscription agreement.
"Trial Setup Fee" means the amount you pay for the Trial.
"Trial Term" means the term of your Trial of the Subscription Service, as specified on your Order Form(s), and each subsequent renewal term (if any).
"Users" means your employees, representatives, consultants, contractors or agents who are authorized to use the Subscription Service for your benefit and have unique user identifications and passwords for the Subscription Service.
"Datapred", "we", "us" or “our” means the applicable contracting entity as specified in the ‘Contracting Entity and Applicable Law’ section.
"You", "your" or “Customer” means the person or entity using the Subscription Service and identified in the applicable account record, billing statement, online subscription process, or Order Form as the customer.
2. USE OF SERVICES
During the Trial, we will provide your Users access to the Subscription Service as described in this Agreement and the applicable Order. We might provide some or all elements of the Subscription Service through third-party service providers (such as, but not limited to, web hosting platforms). You may provide access and use of the Subscription Service to your Affiliate’s Users; provided that, all such access, use and receipt by your Affiliate’s Users is subject to and in compliance with the Agreement and you will at all times remain liable for your Affiliates' compliance with the Agreement.
2.2 Prohibited and Unauthorized Use
You will not use the Subscription Service in any manner that is unlawful or prohibited by this Agreement.
You may not use the Subscription Service if you are legally prohibited from receiving or using the Subscription Service under the laws of the country in which you are resident or from which you access or use the Subscription Service.
The Subscription Service is not designed to comply with industry-specific regulations such as (but not limited to) the European Markets in Financial Instruments Directive (MiFID) and Regulation on Wholesale Energy Market Integrity and Transparency (REMIT), so you may not use the Subscription Service where your operations would be subject to such laws. Nothing contained in this section limits the usage restrictions specific to Sensitive Information under the Agreement.
You will notify us promptly of any unauthorized use of your Users’ identifications and passwords or your account by contacting us at firstname.lastname@example.org.
During the Trial, we will make the applicable Subscription Service available to you upon payment of the Trial Setup Fee until the earlier of (a) the Trial Term (if not terminated earlier) or (b) the start date of your paid subscription.
Unless you purchase a subscription to the applicable Subscription Service before the end of the Trial, all of your data in the Subscription Service may be permanently deleted at the end of the Trial, and we will not recover it.
If we include additional terms and conditions on the Trial registration web page, those will apply as well.
2.4 Legacy Products
If you have a legacy Datapred product, some of the terms and conditions that apply to that product may be different than those that appear in this Agreement. If you have legacy Datapred products, we may choose to move you to our then-current products at any time. If you determine that you are using a legacy product and would like to upgrade to a current-version, you must execute a new Order.
3.1 Trial Setup Fee
The Trial Setup Fee applicable to you is specified on the corresponding Order Form.
3.2 Payment by credit card
You authorize us to charge your credit card or bank account for all fees payable during the Trial. You further authorize us to use a third party to process payments, and consent to the disclosure of your payment information to such third party.
3.3 Payment Information
You will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your Billing Page within your Datapred account. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. Trial Setup Fees are due and payable in advance.
3.4 Sales Tax
All fees are exclusive of taxes, which we will charge as applicable. You agree to pay any taxes applicable to your use of the Subscription Service. You shall have no liability for any taxes based upon our gross revenues or net income. If you are located in the European Union, all fees are exclusive of any VAT and you represent that you are registered for VAT purposes in your member state. At our request, you will provide us with the VAT registration number under which you are registered in your member state. If you do not provide us with a VAT registration number prior to your transaction being processed, we will not issue refunds or credits for any VAT that was charged. If you are subject to GST, all fees are exclusive of GST.
3.5 Withholding Tax
If you are required to deduct or withhold tax from payment of your Datapred invoice, you may deduct this amount from the applicable Subscription Fee due to the extent it is due and payable as assessed withholding tax required under laws that apply to you (the “Deduction Amount”).
You will not be required to repay the Deduction Amount to us, provided that you present us with a valid tax receipt verifying payment of the Deduction Amount to the relevant tax authority within ninety (90) days from the date of the invoice. If you do not provide this tax receipt within the specified time period, then all fees, inclusive of the Deduction Amount, will be immediately due and payable, and failure to pay these fees may result in your account being suspended or terminated for non-payment.
4. INTELLECTUAL PROPERTY
This is an agreement for access to and use of the Subscription Service, and you are not granted a license to any software by this Agreement.
The Subscription Service are protected by intellectual property laws, they belong to and are the property of us or our licensors (if any), and we retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Datapred Content, the Subscription Service in whole or in part, by any means, except as expressly authorized in writing by us.
Our trademarks include, but aren’t limited to, the Datapred name and logo, as they appear on http://www.Datapred.com/ and you may not use any of these without our prior written permission.
We encourage all customers to comment on the Subscription Service, and provide suggestions for improving it.
You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service, without payment or attribution to you.
5. CUSTOMER DATA
5.1 Customer’s Proprietary Rights
You own and retain all rights to the Customer Data.
You grant permission to us and our licensors to use the Customer Data only as necessary to provide the Subscription Service to you and as otherwise permitted by applicable law and this Agreement.
If you are using the Subscription Service on behalf of another party, then you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
5.2 Data Practices
We may collect information about you and your Users when you interact with the Subscription Service as permitted by the Agreement.
We may aggregate and anonymize this information and share it with third parties provided that we do not include any Customer Data or identify Users.
We may also, as the Agreement permits, use Customer Data in an anonymized manner for machine learning to support certain product features and functionality within the Subscription Service.
5.3 Protection of Customer Data
5.4 Retention, Deletion and Retrieval of Customer Data
The Receiving Party will:
(i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind, but in no event less than reasonable care,
(ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement,
(iii) not disclose Confidential Information of the Disclosing Party to any third party (except those third-party service providers used by us to provide some or all elements of the Subscription Service and except for your Datapred Solutions Partner bound by confidentiality obligations), and
(iv) limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
6.2 Permitted Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process; provided, however, that
(i) the Receiving Party will provide the Disclosing Party with prompt notice of any request that it disclose Confidential Information, sufficient to allow the Disclosing Party to object to the request and/or seek an appropriate protective order or, if such notice is prohibited by law, the Receiving Party will disclose the minimum amount of Confidential Information required to be disclosed under the applicable legal mandate;
(ii) the Receiving Party will refer the request to the Disclosing Party and will provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost, in opposing such disclosure or seeking a protective order, unless the Receiving Party is explicitly prohibited from doing so by law or court order; and
(iii) in no event will the Receiving Party disclose Confidential Information to a party other than a government agency except under a valid order from a court having jurisdiction requiring the specific disclosure.
7. SERVICE UPTIME
"Service Uptime" means (total hours in calendar month - unscheduled maintenance which causes unavailability - Priority 1 issue durations - scheduled maintenance - Excluded) / (Total hours in calendar month - scheduled maintenance - Excluded) X 100%.
We will use commercially reasonable efforts to meet a Service Uptime of 99.95% for our Subscription Service in a given calendar month.
All availability calculations will be based on our system records.
The following circumstances are excluded from availability calculations:
(i) unavailability caused by circumstances beyond our reasonable control, including, without limitation, act of God, acts of government, emergencies, natural disasters, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving our employees), or any other force majeure event or factors;
(ii) any problems resulting from Customer's combining or merging the Subscription Service with any hardware or software not supplied by us or not identified by us in writing as compatible with the Subscription Service;
(iii) interruptions or delays in providing the service resulting from telecommunications or internet service provider failures outside of our datacenter as measured by our third-party website availability monitoring provider; and
(iv) any interruption or unavailability resulting from the misuse, improper use, alteration, or damage of the Subscription Service.
8. TERM AND TERMINATION
8.1 Term and Renewal
Your Trial term will be specified in your Order, and, unless otherwise specified in your Order, your Trial will not renew.
8.2 Termination for Cause
Either party may terminate this Agreement for cause immediately, as to any or all Subscription Services, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, cessation of business, liquidation or assignment for the benefit of creditors.
We may also terminate this Agreement for cause immediately if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
This Agreement may not otherwise be terminated prior to the end of the Trial Term.
8.3.1 Suspension for Prohibited Acts
We may suspend any User’s access to any or all Subscription Services without notice for: (i) use of the Subscription Service in a way that violates applicable local, state, federal, or foreign laws or regulations or the terms of this Agreement.
8.3.2 Suspension for Non-Payment
We will provide you with notice of non-payment of any amount due. Unless the full amount has been paid, we may suspend your access to any or all of the Subscription Services two (2) days after such notice. We will not suspend the Subscription Service while you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute. If a Trial is suspended for non-payment, we may charge a re-activation fee to reinstate the Trial.
8.4 Effect of Termination or Expiration
You will continue to be subject to this Agreement for as long as you have access to a Datapred account.
Upon termination or expiration of this Agreement, you will stop all use of the Subscription Service and Datapred Content. If you terminate this Agreement for cause, we will promptly refund any prepaid but unused fees covering use of the Subscription Service after termination. If we terminate this Agreement for cause, you will promptly pay all unpaid fees due through the end of the Trial. Fees are otherwise non-refundable.
You will indemnify, defend and hold us and our Affiliates harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and Affiliates) by a third party not affiliated with us or our Affiliates to the extent that such Action is based upon or arises out of:
(a) unauthorized or illegal use of the Subscription Service by you or your Affiliates,
(b) your or your Affiliates' noncompliance with or breach of this Agreement,
(c) your or your Affiliates' use of Third-Party Products and Services, or
(d) the unauthorized use of the Subscription Service by any other person using your User information.
We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You will not accept any settlement that
(i) imposes an obligation on us;
(ii) requires us to make an admission; or
(iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
10. DISCLAIMERS; LIMITATION OF LIABILITY
10.1 Performance Warranty
We warrant that:
(i) the Subscription Service will be provided in a manner consistent with generally accepted industry standards, and
(ii) we will not knowingly introduce any viruses or other forms of malicious code into the Subscription Service.
We will not have any obligation or liability under this section if the non-conformance is caused by or based on:
(i) any combination of the Subscription Service with any hardware, software, equipment, or data not provided by us,
(ii) modification of the Subscription Service by anyone other than us, or modification of the Subscription Service by us in accordance with specifications or instructions that you provided, or
(iii) use of the Subscription Service in violation of or outside the scope of this Agreement.
This section states our entire liability and your sole and exclusive remedy with respect to any claim provided for under this section.
10.2 Disclaimer of Warranties
Except as set forth in the ‘performance warranty’ section and without limiting our obligations in the 'protection of customer data' section of this Agreement, we and our Affiliates and agents make no representations or warranties about the suitability, reliability, availability, timeliness, security, accuracy or completeness of the Subscription Service, data synched to or made available from the Subscription Service, Datapred Content for any purpose. Application Programming Interfaces (APIs) may not be available at all times.
To the extent permitted by law, the Subscription Service and Datapred Content are provided "as is" without warranty or condition of any kind.
We disclaim all warranties and conditions of any kind, whether express, implied or statutory, with regard to the Subscription Service, including all implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement.
10.3 No Indirect Damages
To the extent permitted by law, in no event will either party or its Affiliates be liable for any indirect, incidental, punitive, or consequential damages, or loss of profits, revenue, data or business opportunities arising out of or related to this Agreement, whether an action is in contract or tort and regardless of the theory of liability; provided that, this limitation will not apply to you if you only use the free services.
10.4 Limitation of Liability
Except for your liability for payment of fees, your liability arising from your obligations under the ‘indemnification’ section, and your liability for violation of our Intellectual Property Rights, if, notwithstanding the other terms of this Agreement, either party or its Affiliates is determined to have any liability to the other party, its Affiliates or any third party, the parties agree that the aggregate liability of a party and its Affiliates will be limited to a sum equal to the total amounts paid or payable for the Subscription Service in the twelve month period preceding the event giving rise to a claim.
10.5 Third Party Products and Services
We and our Affiliates disclaim all liability with respect to Third-Party Products and Services that you use. Our licensors will have no liability of any kind under this Agreement.
10.6 Agreement to Liability Limit
You understand and agree that absent your agreement to this limitation of liability, we would not provide the subscription service to you.
11.1 Amendment; No Waiver
We may modify any part or all of the Agreement from time to time. We will notify you of this revision by email or in-app notification The revised version will become effective and binding the next business day after it this notification.
No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
11.2 Force Majeure
Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
11.3 Actions Permitted
Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
11.4 Relationship of the Parties
You and we agree that no joint venture, partnership, employment, or agency relationship exists between us.
11.5 Compliance with Laws
We will comply with all applicable laws in our provision of the Subscription Service and our processing of Customer Data. We reserve the right at all times to disclose any information as necessary to satisfy any law, regulation, legal process or governmental request.
You will not directly or indirectly export, re-export, or transfer the Subscription Service to prohibited countries or individuals or permit use of the Subscription Service by prohibited countries or individuals.
If any part of this Agreement or an Order Form is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
To Datapred: Notice will be sent email@example.com, and will be deemed delivered as of the date of actual receipt.
To you: your address as provided in our Datapred Subscription account information for you. We may give electronic notices by general notice via the Subscription Service and may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you or through the notifications center of the Subscription Service. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you. You must keep all of your account information current.
11.8 Entire Agreement
We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website.
Our obligations are not contingent on the delivery of any future functionality or features of the Subscription Service or dependent on any oral or written public comments made by us regarding future functionality or features of the Subscription Service.
We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
You will not assign or transfer this Agreement without our prior written consent, except that you may assign this Agreement to a successor by reason of merger, reorganization, sale of all or substantially all of your assets, change of control or operation of law, provided such successor is not a competitor of ours.
We may assign this Agreement to any Datapred Affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
11.10 No Third-Party Beneficiaries
Nothing in this Agreement, express or implied, is intended to or will confer upon any third-party person or entity any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
11.11 Contract for Services
This Agreement is a contract for the provision of services and not a contract for the sale of goods.
Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms. You further warrant and represent that you have the authority to procure your Affiliates compliance with the terms of this Agreement.
During the term of this Agreement, we will, at our own cost and expense, obtain and maintain in full force and effect with reputable insurers, liability insurance with appropriate coverage and minimum limits of liability.
The following sections will survive the expiration or termination of this Agreement: 'Definitions’, ‘Fees’, 'Prohibited and Unauthorized Use', ‘Termination for Cause’, ‘Suspension for Prohibited Acts’, ‘Suspension for Non-Payment’, ‘Effect of Termination or Expiration’, ‘Intellectual Property’, ‘Customer’s Proprietary Rights’, 'Confidentiality’, ‘Indemnification’, ‘Disclaimers; Limitations of Liability’, ‘Miscellaneous’ and ‘Contracting Entity and Applicable Law’.
In the event of a conflict between the terms of the Agreement and an Order, the terms of the Order will control, but only as to that Order.
These Terms and Conditions are governed by, and must be interpreted in accordance with, the laws of Switzerland. Each party submits to the jurisdiction of the Courts of Switzerland in relation to any dispute connected with the Terms and Conditions.