Cloud Terms of Service
SES-IMAGOTAG CLOUD TERMS OF SERVICE
The present document describes the terms of service of the license to the cloud platform granted by SES‑imagotag to the Client and its associated services (hereinafter referred to as the "Cloud Agreement").
Our cloud platform can be accessible from anywhere, anytime through API or a web interface, and in-store with a mobile application. Consult your sales representative to explore the different options according to your needs.
Capitalized terms, not otherwise defined above, have the meaning set forth or cross-referenced in this section.
"Affiliate" means, when used with reference to a specified person, any other person that, directly or indirectly, through one (1) or more intermediaries, controls, is controlled by, or is under common control with, such specified person, where "control" (including the terms "controlling", "controlled by", and "under common control with") shall mean the direct or indirect power to direct or cause the direction of the management and policies of an entity, through ownership of more than fifty percent (50%) of the share capital or of voting rights.
"APIs" means the application programming interface developed and provided by SES-imagotag to enable interoperability between the Software and one (1) or more software applications developed by or on behalf of the Client, which is executed on computers or other electronic devices.
"Authorized User" means any client and any individual employees of the Client accessing or using the Software Services solely on behalf and for the benefit of the Client in the operation of the Client's business.
"Client Data" means information entered as input by the Client or produced as output by the Software, based on a specific query or execution initiated by the Client and includes all data, information, materials, and input provided by the Client to SES‑imagotag. Once entered, the Client Data may be modified or amended only by specific Authorized Users designated by the Client, and such amended or modified information or application shall remain the Client Data. Output from SES‑imagotag's Software Services to the Client constitutes part of the Client Data and shall be considered Confidential Information of the Client.
"Confidential Information" means any information and physical material not generally known or available to the public provided by or related to a Party which may be disclosed or entrusted by either Party (the "Disclosing Party") to the other Party orally or in writing, that has been identified as confidential and/or proprietary or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.
This includes but is not limited to: information relating to products, services, or technology of the Disclosing Party or the Disclosing Party's business (including without limitation, software, computer programs, code, APIs, algorithms, schematics, data know-how, processes, developments, ideas, inventions (whether patentable or not), copyrights, any other proprietary or intellectual property rights and information (whether registered or unregistered), names and expertise of employees and consultants, and other technical business, financial, and product development plans, forecasts, pricing methodologies, strategies, and information).
"Documentation" means text and/or graphical documentation, whether in electronic or printed format, that describe the features, functions, and operation of the Software Services, which materials are designed to facilitate use of the Software Services which are provided by SES‑imagotag to the Client in accordance with the terms of this Cloud Agreement.
"Force Majeure Event" means an event which (i) is beyond a Party's control, (ii) could not be foreseen at the time of conclusion of this Cloud Agreement, and (iii) could not be avoided by appropriate measures. A Force Majeure Event shall mean war, fire, riot, flood, earthquake, typhoon, epidemic, or other natural calamity, blockage, embargo or act of Government authority (e.g., prohibition or restriction of importation or exportation) which meet the criteria in (iii) above and shall exclude work stoppages.
"Intellectual Property Rights" means any and all rights existing under patent law, copyright law, trade secret law, trademark law, unfair competition law, publicity rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions, and restorations thereof, now or hereafter in force and effect worldwide.
"Interfacing Software" means one (1) or more software applications developed by or on behalf of the Client to interface with and interoperate with the SES-imagotag Equipment through the API.
"SES-imagotag Equipment" means SES-imagotag solutions manufactured by or on behalf of SES-imagotag and intended for use with the API.
"SES-imagotag Materials" means the API and the Documentation related to API and other API materials made available by SES-imagotag.
"Software Services" means Software and APIs developed by SES‑imagotag, proprietary processes, any third-party data, documentation, and output delivered by SES‑imagotag to provide a cloud-based solution.
"Software" means exclusively programs licensed by SES‑imagotag to the Client. The Software may include other software programs needed for its functioning.
"Software Updates" means a formal software release deployment (i) which provides new features or functionality, (ii) which provides feature or functionality enhancements, reliability enhancements, and/or correction of errors found in the then current version the Software Services.
SES‑imagotag shall provide to the Client the Software Services, The Client authorizes SES‑imagotag to perform, on behalf of the Client and its Affiliates, such Software Services, and Support Plan subject to the terms of this Cloud Agreement and in accordance with any further requirements and instructions.
Subject to the terms of service contained in this Cloud Agreement, and solely during the Term, SES‑imagotag hereby grants to the Client a non-exclusive, non-transferable right:
- to access the features and functions of the Software Services, solely by Authorized Users and solely as contemplated in this Cloud Agreement;
(iii) to upload the Client Data to the Software Services through the internet;
(iv) to use the SES-imagotag Materials for the sole purpose of developing, testing, and supporting the Interfacing Software to interface with and interoperate with the SES-imagotag Software through the API; and
(v) to use, and to make a reasonable number of copies of, the Documentation solely for the Client's internal use in connection with access and use of the Software Services.
The Cloud Agreement shall commence on the Effective Date and shall remain in effect one (1) year (the "Initial Term") unless otherwise agreed by the Parties.
This Cloud Agreement will automatically be renewed for additional one (1) year periods (each a "Renewal Term", and, collectively with the Initial Term the "Term") unless written notice of termination is provided by a Party not less than three (3) months prior to the commencement of the relevant Renewal Term or in accordance with this Section 4 ("Term").
In the event of termination of the contract before expiry of the Initial Term, SES-imagotag is entitled to charge all the fees which would have been due until the expiration of the Initial Term.
Any provision of this Cloud Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Cloud Agreement, including Sections 1, 4, 11, 17, 20, or 26 shall survive the termination of this Cloud Agreement along with any terms that would by their nature survive such termination.
- Client's Obligations
SES‑imagotag may allow sole access to the named locations, for which the Client has purchased access.
The Client further acknowledges and agrees that it shall be responsible for all acts and omissions of Authorized Users, and for any act or omission by an Authorized User, which, if undertaken by the Client, would constitute a breach of this Cloud Agreement. The Client shall make all Authorized Users aware of the provisions of this Cloud Agreement as applicable to such Authorized Users' use of the Software Services and shall make Authorized Users to comply with such provisions.
The Client shall make sure that they comply with all pre-requisites necessary to use the Software and APIs correctly.
The Client agrees that it has collected and shall maintain and handle all Client Data in compliance with all applicable data privacy and protection laws, rules, and regulations applicable. The Client shall make sure it has all the appropriate rights, licenses, authorisation to collect, use, handle, store, and process Client Data.
Should the Client learn of an unauthorized third party having obtained knowledge of a password, the Client shall inform SES‑imagotag thereof without undue delay and promptly change the password. The Client is responsible for the connection to the Software Services, including the internet connection.
SES‑imagotag may open access to the Software Services only after Cloud Agreement's signature by the Client. On or as soon as reasonably practicable after the Effective Date (as defined in Section 4), SES‑imagotag shall provide to the Client the necessary information and network links or connections to allow the Client to access the Software Services.
All Software Updates will be set at the sole discretion of SES-imagotag.
SES‑imagotag does not provide the equipment to access the Software Services in the frame of this Cloud Agreement. The Client is responsible for all fees that may be charged by third parties to access the Software Services (e.g., fees by internet service providers).
Services and Availability
SES‑imagotag will use commercially reasonable security technologies (such as encryption, password protection, and firewall protection) in providing the Software Services and the Client shall comply with the applicable security guidelines and procedures made known to the Client through the Software Services or otherwise.
The Client agrees that SES‑imagotag does not control the transfer of data, including but not limited to the Client Data, over telecommunications facilities, including the internet. SES‑imagotag does not warrant secure operation of the Software Services (including any additional services, if any) or that such security technologies will be able to prevent third party disruptions of the Software Services.
The Client grants to SES‑imagotag the nonexclusive right to use the Client Data for the sole purpose of, and only to the extent necessary for, SES‑imagotag to provide the Software Services. The Client shall be responsible for entering the Client Data into the Software Services and the Client shall be responsible for the maintenance of the Client Data supplied by it. The Client hereby represents and warrants to SES‑imagotag that the Client Data is free of all viruses, Trojan horses, and comparable elements which could harm the systems or software used by SES‑imagotag or its subcontractors when providing the Software Services.
"Availability" only applies for Software Services and is calculated as the percentage of time where:
- the data and the product association with IOT devices are received by the Software, and
- the graphical interface is accessible through the internet.
Availability is guaranteed to be at or above the levels described in the chart below. Availability will be calculated per calendar month, as follows:
- "Total" is the total number of minutes in the specified calendar month, and
- "Non-excluded" is the number of minutes of unplanned downtime, and
- "Excluded" consists of the following:
- "Agreed Down-Time" for maintenance or upgrade whereby, for major releases or upgrades, SES‑imagotag gives the Client prior notice that the Software Services will be unavailable.
For any partial calendar month during which the Client subscribes to the Software Services, Availability will be calculated based on the full calendar month, not just the portion during which the Client subscribed.
Should SES‑imagotag fail to achieve ninety nine percent (99%) system availability over a calendar month, the Client shall have the right to receive a credit equal to one percent (1%) of its subscription fees for the Software Services for that month, for each one percent (1%) (or portion thereof) by which SES‑imagotag fails to achieve such level, up to one hundred percent (100%) of the fees for such month. This is the Client's sole and exclusive remedy for any breach of this service level warranty. Claims under this service level warranty must be made in good faith and by submitting a support case within ten (10) business days after the end of the relevant period. Availability is further limited as set forth in Section 18.2 ("Availability Specific Disclaimers").
The Client shall not:
- copy or duplicate the Software Services;
- decompile, disassemble, reverse engineer, or otherwise attempt to obtain or derive the source code from which any Software or APIs component of the Software Services is compiled or interpreted, and the Client acknowledges that nothing in this Cloud Agreement will be construed to grant the Client any right to obtain or use such source code;
- distribute, or otherwise transfer the Software Services and to any third party or incorporate the Software Services in any software, product, or technology;
- modify the Software Services, or the Documentation, or create any derivative product from any of the foregoing, except with the prior written consent of SES‑imagotag;
- assign, sublicense, sell, resell, lease, rent, or otherwise transfer or convey, or pledge as security or otherwise encumber, part or entirety of its rights under Section 3 ("Subscription");
- upload and/or use any data, fonts, images, and typefaces without having previously executed the appropriated end user license agreement if necessary. SES‑imagotag does not provide any font and typeface within this Cloud Agreement and it is Client's sole liability to acquire the necessary rights to use said fonts and typefaces;
- perform any security test of any kind without SES‑imagotag's prior consent, including penetration tests and security breach attempts;
- use any Software Services in violation of all applicable laws and regulations (including but not limited to any applicable privacy and intellectual property laws);
- use the Software Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property rights or other rights of any person, or that violates any applicable law.
The Client will not use the Software Services, Documentation, or any other materials and solutions provided by SES-imagotag except in compliance with this Cloud Agreement and SES‑imagotag obligations to any third party with respect thereto, provided that SES‑imagotag has notified the Client of such obligations.
- Fair Use Restrictions
The Client agrees to use the Software Services only for lawful purposes. The Client agrees to follow the best practices in connection with the use of the Software Services. The Client may not use the Software Services to publish content or engage in activities that are illegal under applicable law, that are harmful to others (at SES-imagotag's discretion), or that would potentially subject SES-imagotag to incur liability, including, without limitation, infringing the intellectual property or other proprietary rights of third parties.
Any material or conduct that, in SES-imagotag's sole discretion, would violate the Fair Use Policy (as defined below) in any manner, may result in limitation, suspension or termination of the Software Services, and any other services provided under this Cloud Agreement or removal of the user's account with notice.
SES-imagotag's Availability commitment does not apply in cases of Client's non-compliance with this Fair Use Policy.
SES-imagotag has set limits that must not be exceeded (the "Fair Use Policy"):
- Ratio between number of Items and IOT devices per location: maximum five (5);
- Ratio between number of references and Items: maximum three (3);
- API calls: maximum of one hundred thousand (100,000) calls per day;
- API calls: maximum one (1) GB data per day (outbound and inbound combined);
- Maximum fifty (50) fields per item;
- Maximum two (2) kB per Item.
- SES-imagotag Material Limitations
With regards to SES-imagotag Materials, the Client shall not (and shall not enable or authorize any third party to) do any of the following:
- combine or integrate the SES-imagotag Materials with any software, technology, services, or materials not authorized in advance by SES-imagotag;
- permit the Interfacing Software to disable, override, or otherwise interfere with any SES-imagotag-implemented communications to end users, consent screens, user settings, alerts, warning, or the like;
- use the SES-imagotag Materials in any of the Interfacing Software to replicate or attempt to replace the user experience of SES-imagotag Software Services;
- attempt to cloak or conceal the Client's identity or the identity of the Interfacing Software when requesting authorization to use the SES-imagotag Software Services ;
- circumvent a technological measure, descramble a scrambled work, decrypt an encrypted work, or otherwise avoid, bypass, remove, deactivate, or impair a technological measure designed to protect the SES-imagotag Software Services;
- access all or any part of the SES-imagotag Materials in order to build a product or service which competes with the SES-imagotag's Software Services.
The Client recognizes and agrees that the SES-imagotag Materials contains valuable proprietary information and trade secrets of SES-imagotag and its contractors and suppliers that remain the property of SES-imagotag. The Client shall protect the confidentiality of, and avoid disclosure and unauthorized use of, such SES-imagotag Materials.
- Third Party Software
The Client acknowledges that utilization of the APIs may require the Client's use of a development tool, compiler, and other software and technology of third parties ("Third Party Software"). The Client is solely responsible for procuring such Third Party Software and technology and the necessary licenses for the use thereof. SES-imagotag makes no representation or warranty concerning Third Party Software and shall have no obligation or liability with respect to Third Party Software.
The Client warrants that the Interfacing Software has been developed to operate with the API content in a secure manner. Client's network, operating system, and the software of its servers, databases, and computer systems (collectively, "Systems") must be properly configured to securely operate the Interfacing Software and store content collected through the Interfacing Software (including the API content). The Interfacing Software must use reasonable security measures to protect the private information of Client's users.
SES-imagotag may use technology to detect, prevent, or limit the impact of any issues caused by the Interfacing Software (before or instead of suspension of the Client's access). This may include, for example, filtering to stop spam or limiting the Client's access to the API for other reasons at the discretion of SES-imagotag.
The Client must have a process to respond to any vulnerabilities in the Interfacing Software, and in the case of any vulnerabilities related to the Interfacing Software's connection to the API discovered by the Client or reported to the Client by a third party, Client agrees that it will promptly provide vulnerability details to SES-imagotag to allow SES-imagotag to investigate the issue or concern.
The Client shall be solely responsible for procuring, maintaining, and securing its network connections and telecommunications links from its systems to SES-imagotag's data centers, and all problems, conditions, delays, delivery failures, and any other loss or damage arising from or relating to Client's connections or telecommunications links or caused by the internet. The Client agrees to monitor the use of the Interfacing Software for any activity that violates applicable laws, rules, and regulation or any terms of service of this Cloud Agreement, including any fraudulent, inappropriate, or potentially harmful behaviour, and promptly restrict any offending users of the Interfacing Software from further use of the Interfacing Software.
- Updates and Modifications
SES-imagotag may, at its sole discretion and at any time, update or modify the SES-imagotag Materials. The Client understands and acknowledges that this Cloud Agreement does not create any obligation on behalf of SES-imagotag to update or modify the SES-imagotag Materials. The Client further understands that updates or modifications to the SES-imagotag Materials may: (a) remove or restrict previously existing functionality and/or (b) require the Client to update or modify its Interfacing Software without any compensation from SES-imagotag to the Client.
- SES‑imagotag Retained Rights and Ownership
Notwithstanding any other provision of the Cloud Agreement, SES‑imagotag hereby retains the right to use, and to grant third parties the right to use, the Software Services, Documentation, and any other materials or solutions provided by SES-imagotag under this Cloud Agreement for any and all purposes whatsoever. The Client acknowledges that there are no implied licenses granted under this Cloud Agreement. As between SES‑imagotag and the Client, SES‑imagotag retains all right, title, and interest in the Software Services, Documentation, and any other materials or solutions provided by SES-imagotag under this Cloud Agreement, including all copies thereof in any form or medium, whether now known or existing or hereafter developed, and further including all pricing methodologies, models, programs, analytical tools, algorithms, software tools, APIs, and related methodologies, its copyrights, patents, trade secrets, trademarks, or trade names therein. Except to the extent granted herein, the Client acquires no rights in any of the foregoing.
The original and any copies of the Software Services, made by the Client, including translations, compilations, partial copies, modifications, and updates, are the sole property of SES‑imagotag. The Client shall not remove any proprietary notices, if any, from the Software Services, or other Documentation.
Any Intellectual Property Rights related to the Software Services, or to solutions and materials provided under this Agreement, shall remain the sole property of SES‑imagotag.
During the Term, the Client grants to SES‑imagotag a limited, non-exclusive, non-sublicensable, non-transferable license to use, copy, store, and display the Client Data solely to the extent necessary to provide the Software Services to the Client, including archival, backup, mirroring, quality assurance, statistical, and redundancy purposes, provided such use is in compliance with the terms of service of this Cloud Agreement. SES‑imagotag may not use Client Data without Client's prior consent for any other purpose except when aggregated with the data of other clients where the identification of any particular client cannot be ascertained and is done for statistical and quality control purposes.
In addition to its confidentiality obligations under Section 16 ("Confidentiality"), SES‑imagotag will not use, edit, or disclose Client Data without Client's consent to any party other than to its affiliated companies or to the Client, or where required by law or regulation.
SES‑imagotag will exercise commercially reasonable efforts to maintain the security and integrity of the Software Services, and Client Data, and will inform the Client of any third party who requires access to Client Data. Notwithstanding the above, the Client commits to maintain its own backups of Client Data separate and apart from any kept or maintained by SES-imagotag, and shall not rely on SES-imagotag for such backups.
Technical logs are stored for 30 days and are available only for SES-imagotag teams. History and usage data (label timelines, linked product data changes, etc.) is tracked and available via API, including ability to export the data. History and usage data are stored for 90 days.
Upon termination or expiration of this Cloud Agreement for any reason and upon written request by the Client, SES‑imagotag will provide the Client with the Client Data in a mutually agreed upon timeframe or destroy said data, at Client's preference. Notwithstanding the foregoing, SES-imagotag may retain a copy of Client Data solely to the extent required to comply with law, regulation, or its internal document retention policies, or pursuant to bona fide automatic electronic backup procedures provided that such copy shall be subject to an indefinite confidentiality obligation according to the terms of service set forth herein until returned or destroyed. As between SES‑imagotag and the Client, Client Data is the sole and exclusive property of the Client.
SES‑imagotag and the Client are further subject to any applicable laws regarding Personal Data Protection.
The Client will collect and maintain all personal data contained in the Client Data in compliance with applicable laws and regulations. The Client must inform SES-imagotag of the relevant and applicable local personal data protection laws and regulations.
In consideration for the access rights granted, the Client shall pay to SES‑imagotag certain fees according to the pricelist agreed upon between the Parties. These fees include the license fee for the Software Services.
Four (4) months before the end of the Initial Period, SES-imagotag may inform the Client of the revised fees applicable to the following Renewal Term. If this occurs, the Client is entitled to terminate the Cloud Agreement according to Section 4 ("Term").
Method of payment shall be in the form set forth in Section 15 ("Payment").
The Client is responsible for payment of any applicable sales, use, and other taxes, as well as all applicable export and import fees, customs duties, and similar charges (other than taxes based on SES‑imagotag's income), and any related penalties and interest for the delivery of Software Services hereunder. The Client will make all required payments to SES‑imagotag free and clear of, and without reduction for, any withholding taxes.
Unless otherwise agreed in writing by the Parties, the Software Services, shall be invoiced to the Client annually in full and in advance, according to the number of locations and number of relevant IOT devices. The totality of the fees for any year started is due as set forth in Section 15 ("Payment"). In case of significant change of number of locations and/or IOT devices, SES‑imagotag will use its best effort to promptly inform the Client about the new applicable pricelist. In any case, invoicing shall not require issuance of a purchase order by the Client.
The Client shall pay invoices within thirty (30) days from SES-imagotag's issuance of the invoice.
Payments shall be made in United States Dollars by wire transfer. However, SES‑imagotag shall be entitled to request payment by direct debit at any time pursuant to the terms of the Cloud Agreement.
In the event that the Client does not pay any amount due, either related to this Cloud Agreement or to the products purchased under the standard T&Cs within the deadline set forth above, SES‑imagotag will have the right to suspend any of the Software Services, provided as per the Cloud Agreement (including by freezing any labels updates) and to charge a late fee on any unpaid amounts at the rate applied by the United States Federal Funds Rate plus ten percent (10%) or the highest amount permitted by law, whichever is higher. SES‑imagotag is also entitled to obtain from the Client, as a minimum, a fixed sum of forty United States dollars ($40) per late invoice, as compensation for its recovery of costs.
SES‑imagotag may terminate provision of the Software Services, without further notice upon Client's non-payment after ninety (90) days past the original payment due date.
The Client shall pay SES‑imagotag all reasonable costs incurred in enforcing the provisions of this Section 15 ("Payment").
No failure by SES‑imagotag to request any payment or to demand any performance shall be deemed a waiver by SES‑imagotag of Client's obligations hereunder or a waiver of SES‑imagotag's right to terminate this Cloud Agreement.
The Parties acknowledge that during the performance of this Cloud Agreement, each Party may have access to certain of the other Party's Confidential Information.
Each Party agrees:
- that all items of Confidential Information are proprietary to the Disclosing Party and will remain the Disclosing Party's sole property;
- to use Confidential Information only for the purposes described herein;
- not to reproduce Confidential Information except with the written permission of the other Party;
- to hold in confidence and protect such Confidential Information from dissemination as if it were its own; and
- to return or destroy (except for copies maintained through bona fide document retention policies, as set forth in Section 12 ("Protection of Client Data") all Confidential Information that is in its possession upon termination or expiration (as the case may be) of this Cloud Agreement.
Notwithstanding the foregoing, the provisions of the present Section will not apply to Confidential Information that:
- is publicly available or in the public domain at the time disclosed or becomes publicly available or enters the public domain through no fault of the recipient;
- is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto;
- is already in the recipient's possession free of any confidentiality obligations with respect thereto at the time of disclosure;
- is independently developed by the recipient; or
- is disclosed with the prior written approval of the non-disclosing Party.
Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law.
Except as expressly authorized in this Cloud Agreement, the Client shall not publish any performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software Services, without prior written permission from SES-imagotag.
The Client may subcontract the development and/or the hosting of the Interfacing Software or other specific requests to subcontractors provided that the Client:
- informs SES-imagotag prior to such a subcontracting activity, including the identity of the subcontractor and nature of the activity, prior to the commencement of that activity;
- remains fully responsible for the performance of its obligations under this Cloud Agreement; and
- binds subcontractors to the terms and conditions of this Cloud Agreement.
For the avoidance of doubt, a subcontractor's use of the SES-imagotag Materials for such purposes of the Client shall be permitted under this Cloud Agreement and subject to an additional fee paid by the Client.
Without prejudice to the foregoing, the Client:
- is prohibited from communicating its Client's user identifier(s) to its subcontractor;
- will remain fully liable to SES-imagotag for any action or omissions of any subcontractor.
In no case whatsoever should SES-imagotag be liable for any action undertaken by the Client's subcontractor.
SES-imagotag reserves the right to use a subcontractor at its sole discretion, without prior notice or consent of the Client.
Warranties and Disclaimers
SES‑imagotag specifically disclaims all warranties, express, implied, or statutory, written or oral, including without limitation, warranties of merchantability, fitness for a particular purpose, and non-infringement.
SES‑imagotag does not warrant that the Software Services, or any other information, materials, and/or data provided under this Cloud Agreement will meet Client's requirements or is complete, accurate, or error-free. SES-imagotag shall not be held liable for errors or bugs within the Software Services which do not materially impair the use of the Software Services by the Client.
It is hereby stated and agreed that in any case whatsoever can SES-imagotag be held liable in case of Solution failure due to a malfunction coming from the cloud infrastructure provider.
The Client acknowledges that the usage of the Software Services may have an impact on the battery lifetime of the IOT devices sold by SES-imagotag.
The Client acknowledges that the usage of the Software Services will use Client's network bandwidth.
SES-imagotag does not assume any liability whatsoever for defects or other failures of Software Services:
- caused by application errors of any kind whatsoever or other forms of improper handling of the Software Services and which could have been avoided by proper and careful use of the Software Services;
- resulting from (a) a change of operating system components, interfaces or parameters, (b) use of unsuitable organisational means or data carriers;
- caused by viruses or exposure of the Software Services to circumstances such as accidents, power failures, etc., which are caused by external factors and not under the control of SES-imagotag;
- caused by transmission errors to data carriers or on the internet;
- caused by network outage or issues
- caused by improper inspection and/or maintenance operations conducted by the Client or third parties with regard to the Software Services;
- resulting from a use of the Software Services which does not comply with the recommendations and specifications of SES-imagotag;
- caused by the Client, their agents, employees, or any other manufacturer or third party outside the sphere and control of SES-imagotag.
- caused by Client's addition of new software or hardware configurations not compatible with the Software Services (e.g., access points, third-parties devices, mobile devices, etc.).
- caused by the uninstallation, overwriting, alteration, or modification of the software and hardware configuration required for the proper functioning of the Software Services.
The Client is not authorized to, and shall not, make any representations or warranties on behalf of SES‑imagotag.
The Client shall be solely responsible for any financial or professional decisions made based upon use of the Software Services.
- Availability Specific Disclaimers
SES-imagotag shall not be responsible for ensuring the Availability as set forth in Section 7 ("Services and Availability") in the occurrence of the following events:
- power outage on SES-imagotag access points;
- network outage or issues;
- network configuration changes (e.g., NTP port, etc.)
- Third party access points configuration;
- client-overwritten configurations.
SES‑imagotag agrees to indemnify, defend, and hold the Client harmless from and against any and all losses, liabilities, costs (including reasonable attorneys' fees), or damages resulting from any claim by any third party that the Software Services infringe or misappropriates, as applicable, such third party's patents issued as of the Effective Date, or copyrights, trademarks, or trade secret rights recognized under applicable laws of any jurisdiction provided that the Client notifies SES‑imagotag within ten (10) calendar days in writing of the claim, cooperates with SES‑imagotag, and allows SES‑imagotag sole authority to control the defense and settlement of such claim, provided that SES‑imagotag will not settle any third-party claim against the Client unless such settlement completely and forever releases the Client from all liability with respect to such claim or unless the Client consents to such settlement, and further provided that the Client will have the right, at its option and sole expense, to participate in the defence of such claim thereof by counsel of its own choice and expense.
If such a claim is made or threatened, SES‑imagotag shall, at its sole discretion, enable the Client to continue to use the Software Services, or to modify or replace any such infringing material to make it non-infringing. If SES‑imagotag determines that none of these alternatives is reasonably available, the Client shall, upon written request from SES‑imagotag, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim.
This Section 18 ("Indemnification") shall not apply if the alleged infringement arises, in whole or in part, from:
- Client's modification of the Software Services, and/or Software or any of the SES-imagotag Materials;
- combination, operation, or use of the Software Services with other software, hardware, or technology not provided by SES‑imagotag; or
- Client Data.
- Limitation of Liability
ANY LIABILITY OF SES-IMAGOTAG TO THE CLIENT FOR DAMAGES OF ANY KIND CAUSED BY SES-IMAGOTAG DUE TO SLIGHT NEGLIGENCE SHALL BE EXCLUDED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT SHALL SES‑IMAGOTAG BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, FAILURE, OR MALFUNCTION OF ANY COMPUTER OR ELECTRONIC SYSTEM, OR OTHER PECUNIARY LOSS, IN ANY WAY ARISING OUT OF OR RELATED TO THE SOFTWARE SERVICES, OR THIS CLOUD AGREEMENT, EVEN IF SES‑IMAGOTAG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING LIMITATIONS DO NOT EXCLUDE OR LIMIT EITHER PARTY'S LIABILITY TO THE OTHER FOR OBLIGATIONS OF INDEMNITY, BREACH OF CONFIDENTIALITY, FRAUDULENT MISREPRESENTATION, DAMAGES RESULTING FROM THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF THE PARTY OR ITS EMPLOYEES, CONTRACTORS, OR AGENTS, OR FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY APPLICABLE LAW. DURING THE INITIAL TERM AND ANY FOLLOWING RENEWAL TERMS, THE CUMULATIVE LIABILITY OF SES‑IMAGOTAG TO THE CLIENT FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS CLOUD AGREEMENT SHALL NOT EXCEED THE AMOUNT OF ALL FEES PAID TO SES‑IMAGOTAG BY THE CLIENT UNDER THIS CLOUD AGREEMENT FOR THE RELATED LOCATIONS DURING THE TWELVE (12) MONTHS PERIOD PRIOR TO THE ACT, OMISSION, OR EVENT GIVING RISE TO SUCH LIABILITY. IN CASE WHERE THE DAMAGE OCCURS DURING THE FIRST TWELVE (12) MONTHS FOLLOWING THE EFFECTIVE DATE, THE PARTIES WILL ASSESS THE MONTHLY AVERAGE FEE IN ORDER TO OBTAIN THE AMOUNT OF YEARLY AVERAGE FEE (I.E., MONTHLY AVERAGE FEE MULTIPLIED BY TWELVE (12) SHALL EQUAL THE = YEARLY AVERAGE FEE). THIS AMOUNT OF YEARLY AVERAGE FEE CONSTITUTES THE LIABILITY LIMIT OF SES‑IMAGOTAG.
Either Party may terminate this Cloud Agreement immediately upon written notice in the event that the other Party materially breaches this Cloud Agreement and fails to cure such breach within thirty (30) days following such other Party's receipt of written notice specifying the nature of the breach in reasonable detail.
- Termination by SES-imagotag
SES-imagotag shall be entitled to terminate this Cloud Agreement automatically, without any liability or indemnity whatsoever to the Client, by giving written notice to the Client, should any of the following events occur:
- the Client engages in any action that disparages SES-imagotag or any of its Affiliates, or otherwise devalues the name, logos, trademarks, goodwill, or reputation of SES-imagotag or any of its Affiliates;
- the Client breaches a substantial obligation of the Cloud Agreement (Sections considered substantial provisions are 4, 5, 8, 9.1, 13, 15, and 16);
- the Client brings or threatens to bring any patent claim against SES-imagotag or any of its Affiliates (including any cross-claim or counterclaim) to enforce any patents the Client alleges are infringed by the SES-imagotag Materials;
- the Client submits or files a petition of bankruptcy or is declared bankrupt or starts proceeding of arrangement or settlement in relation to bankruptcy;
- the Client applies to the Court (or any other person so entitled), for the appointment of an administrator in relation to dissolution, bankruptcy, or similar proceeding; or
- the Client submits a petition for winding up except in the case of a bona fide intra-group reorganization.
- Consequences of Termination
As from the termination date of the Cloud Agreement, the access to and the right to use the Software Services, will be immediately stopped without prior notice. The Client commits to immediately pay any pending invoices to SES‑imagotag.
- Termination for Force Majeure Event
If a Force Majeure Event persists between the Parties beyond a period of thirty (30) consecutive calendar days, the non-affected Party may terminate this Cloud Agreement automatically, in whole or in part, without any liability or indemnity whatsoever to the other Party unless expressly provided otherwise in this Cloud Agreement, by giving a written notice of termination, effective immediately, to the other Party by reason of the Force Majeure Event. No other formalities than those set out in this Section 25 ("Termination for Force Majeure Event") shall be required for the purpose of any termination pursuant hereto.
- GOVERNING LAW AND COMPETENT JURISDICTION
This Cloud Agreement will be governed by the laws of the State of California, without regards to, or application of, rules or principles regarding conflicts of law, venue, or the Untied Nations Convention on the International Sale of Goods. Fur purposes of all claims brought under this Cloud Agreement, each of the Party herby irrevocably submits to the exclusive jurisdiction of courts located in Santa Clara County, California UNITED STATES OF AMERICA.
The Client acknowledges that SES‑imagotag will have the right to seek an injunction, if necessary, to stop or prevent a breach of Client's obligations hereunder. In the event that SES‑imagotag prevails in any proceeding or lawsuit brought by either Party in connection with this Cloud Agreement, SES‑imagotag will be entitled to receive its costs, expert witness fees and reasonable attorney's fees, including costs and fees on appeal.
Waiver of a breach or right hereunder must be in writing and will not constitute a waiver of any other or subsequent breach or right. If any provision herein shall be held by a court of competent jurisdiction to be contrary to law, that provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions herein will remain in full force and effect.
The Client may not assign this Cloud Agreement without obtaining SES‑imagotag's prior or contemporaneous written consent and any attempted or purported assignment by the Client shall be null and void. This Cloud Agreement constitutes the entire agreement, understanding, and representations, expressed or implied, of the parties with respect to the subject matters described herein, and supersedes all prior or contemporaneous written and oral communications, agreements, letters of intent, representations, warranties, statements, negotiations, understandings, and proposals, with respect to such subject matters. This Cloud Agreement may not be amended or modified without the mutual written agreement of the Parties.