Updated April 2024

 

This End User Agreement (“Agreement”) is between you (“you” or “Customer”) and Onpoint Ltd, a limited liability company organized and existing under the laws of the Republic of Malta, with it registered office at 131, St Catherine, Blue Grotto Avenue, Zurrieq, ZRQ4015, Malta (“Publisher”) from which you are procuring Offerings (defined below) and governs your use of Offerings purchased through either Microsoft AppSource, also referred to through Business Central system as Extension Marketplace (collectively, “Marketplace”).

 

This Agreement is the parties’ entire agreement on this subject and merges and supersedes all related prior and contemporaneous agreements. By installing, copying, or otherwise using any of the Offerings, you agree to be bound by the terms of this Agreement. By agreeing to these terms, you represent and warrant that you have the authority to accept this Agreement, and you also agree to be bound by its terms. This Agreement applies to all Orders entered into under this Agreement. Capitalized terms have the meanings given under “Definitions.

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1 LICENSE TO OFFERINGS

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1.1 License grant. Offerings are licensed and not sold. Upon acceptance of an Order, and subject to Customer’s compliance with this Agreement, Publisher grants Customer a nonexclusive and limited license to use the ordered Offerings. These licenses are solely for Customer’s own use and business purposes and are nontransferable except as expressly permitted under this Agreement or applicable law.

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1.2 Third-Party Software. Offerings may contain or be provided with components that are subject to open-source software licenses. Any use of those components may be subject to additional terms and conditions and Customer agrees that any applicable licenses governing the use of the components will be incorporated by reference in this Agreement.

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1.3 Duration of licenses. All licenses commence after Publisher receives the relevant fee in Publisher’s bank account. Licenses granted on a subscription basis expire at the end of the applicable subscription period set forth in the Order, unless renewed. Customer is solely responsible for renewing licenses on time and Publisher will not be liable for any damages as specified in Section 10 arising in connection with late renewal of any license. Licenses granted for metered Offerings billed periodically based on usage continue as long as Customer continues to pay for its usage of the Offerings.

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1.4 End Users. Customer will control access to and use of the Offerings by End Users and is responsible for any use of the Offerings that does not comply with this Agreement.

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1.5 Affiliates. Customer may order Offerings for use by its Affiliates. If it does, the licenses granted to Customer under this Agreement will apply to such Affiliates, but Customer will have the sole right to enforce this Agreement against Publisher. Customer will remain responsible for all obligations under this Agreement and for its Affiliates’ compliance with this Agreement and any applicable Order(s)

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1.6 Reservation of Rights. Publisher reserves all rights not expressly granted in this Agreement. Offerings are protected by copyright and other intellectual property laws and international treaties. No rights will be granted or implied by waiver or estoppel. Rights to access or use Offerings on a device do not give Customer any right to implement Publisher’s patents or other intellectual property in the device itself or in any other software or devices.

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1.7 Restrictions. Except as expressly permitted in this Agreement, Documentation or an Order, Customer must not (and is not licensed to):

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a. copy, modify, reverse engineer, decompile, or disassemble any Offering, or attempt to do so;

b. install or use any third-party software or technology in any way that would subject Publisher’s intellectual              property or technology to any other license terms;

c. work around any technical limitations in an Offering or restrictions in Documentation;

d. separate and run parts of an Offering on more than one device;

e. upgrade or downgrade parts of an Offering at different times;

f. use an Offering for any unlawful purpose;

g. transfer parts of an Offering separately; or

h. distribute, sublicense, rent, lease, or lend any Offerings, in whole or in part, or use them to offer hosting

    services to a third party.

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1.8 Feedback. Any Feedback is given voluntarily, and the provider grants to the recipient, without charge, a non-exclusive license under provider’s owned or controlled non-patent intellectual property rights to make, use, modify, distribute, and commercialize the Feedback as part of any of recipient’s products and services, in whole or in part and without regard to whether such Feedback is marked or otherwise designated by the provider as confidential. The provider retains all other rights in any Feedback and limits the rights granted under this section to licenses under its owned or controlled non-patent intellectual property rights in the Feedback (which do not extend to any technologies that may be necessary to make or use any product or service that incorporates, but are not expressly part of, the Feedback, such as enabling technologies).

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2. RELATIONSHIP WITH MICROSOFT

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2.1 Offerings are designed to interoperate with products provided by Microsoft Corporation, a joint stock company incorporated under the laws of the state of Washington, United States, with its registered office at One Microsoft Way, Redmond, WA 98052 (“Microsoft”), including Azure, Microsoft 365, Teams, and others).

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2.2 Publisher is the licensor of the Offerings and Microsoft is not party to this Agreement.

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2.3 Offerings use Dynamics 365 Business Central by Microsoft to function.

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3. FREE TRIAL

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3.1 Publisher offers to Customer a limited-time free trial of the Offering at its discretion (“Free trial”)

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3.2 During the Free trial, the Customer may use the Offering solely for evaluation and testing purposes, in accordance with this Agreement.

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3.3 The Free trial will automatically end after the specified trial duration, unless the Customer places an Order to acquire a valid license subject to this Agreement. Publisher may terminate or restrict access to the Free trial at any time without notice.

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3.4 Any data or settings created during the Free trial may be lost upon its expiration or termination. Publisher is not responsible for any data loss.

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4. PRIVACY

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EU Standard Contractual Clauses. To the extent applicable, the parties will abide by the requirements of European Economic Area and Swiss data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area and Switzerland. All transfers of Customer Data out of the European Union, European Economic Area, and Switzerland will be governed by the Standard Contractual Clauses, as designated by the European Commission, together with the International Data Transfer Agreement designated by the Information Commissioner for transfers out of UK, made available by the Publisher at the applicable URL for such terms or as otherwise communicated to Customer.

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4.1 Personal Data. Customer consents to the processing of Personal Data by Publisher and its Affiliates, and their respective agents and Subcontractors, as provided in this Agreement. Before providing Personal Data to Publisher, Customer will obtain all required consents from third parties (including Customer’s contacts, partners, distributors, administrators, and employees) under applicable privacy and Data Protection Laws.

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a. Processor and Controller Roles and Responsibilities. Customer and Publisher agree that Customer is the controller of Personal Data and Publisher is the processor of such data, except when (a) Customer acts as a processor of Personal Data, in which case Publisher is a subprocessor or (b) stated otherwise in any Offering-specific terms. Publisher will process Personal Data only on documented instructions from Customer. In any instance where the GDPR applies and Customer is a processor, Customer warrants to Publisher that Customer’s instructions, including appointment of Processor as a processor or subprocessor, have been authorized by the relevant controller.

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b. Processing Details. The parties acknowledge and agree that:

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i. the subject-matter of the processing is limited to Personal Data within the scope of the GDPR;

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ii. the duration of the processing will be for the duration of the Customer’s right to use the Offering and until all Personal Data is deleted or returned in accordance with Customer instructions or the terms of this Agreement;

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iii. the nature and purpose of the processing will be to provide the Offering pursuant to this Agreement;

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iv. the types of Personal Data processed by the Offering include those expressly identified in Article 4 of the GDPR; and

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v. the categories of data subjects are Customer’s representatives and end users, such as employees, contractors, collaborators, and customers, and other data subjects whose Personal Data is contained within any data made available to Publisher by Customer.

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c. Data Subject Rights; Assistance with Requests. Publisher will make information available to Customer in a manner consistent with the functionality of the Offering and Publisher’s role as a processor of Personal Data of data subjects and the ability to fulfill data subject requests to exercise their rights under the GDPR. If Publisher receives a request from Customer’s data subject to exercise one or more of its rights under the GDPR in connection with an Offering for which Publisher is a data processor or subprocessor, Publisher will redirect the data subject to make its request directly to Customer. Customer will be responsible for responding to any such request including, where necessary, by using the functionality of the Offering. Publisher will comply with reasonable requests by Customer to assist with Customer’s response to such a data subject request.

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d. Use of Sub processors. Customer consents to Publisher using the sub processors listed at the applicable Publisher URL or as otherwise communicated to Customer. Publisher remains responsible for its sub processors’ compliance with the obligations herein. Publisher may update its list of sub processors from time to time, by providing Customer at least 14 days notice before providing any new sub processor with access to Personal Data. If Customer does not approve of any such changes, Customer may terminate any subscription for the affected Offering without penalty by providing, prior to expiration of the notice period, written notice of termination that includes an explanation of the grounds for non-approval.

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e. Records of Processing Activities. Publisher will maintain all records required by Article 30(2) of the GDPR and, to the extent applicable to the processing of Personal Data on behalf of Customer, make them available to Customer upon request.

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4.3 Security. Publisher will take appropriate security measures that are required by Data Protection Laws and in accordance with good industry practice relating to data security.

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4.4 Support Data. Publisher may collect and use Support Data internally to provide technical support for the Offering. Publisher will not use Support Data for any other purpose unless otherwise agreed in writing by the parties.

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5. CONFIDENTIALITY

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5.1 Confidential Information. “Confidential Information” is non-public information that is designated “confidential” or that a reasonable person should understand is confidential, including, but not limited to, Customer Data, Support Data, the terms of this Agreement, and Customer’s account authentication credentials. Confidential Information does not include information that: (1) becomes publicly available without a breach of a confidentiality obligation; (2) the receiving party received lawfully from another source without a confidentiality obligation; (3) is independently developed; or (4) is a comment or suggestion volunteered about the other party’s business, products, or services.

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5.2 Protection of Confidential Information. Each party will take reasonable steps to protect the other’s Confidential Information and will use the other party’s Confidential Information only for purposes of the parties’ business relationship. Neither party will disclose Confidential Information to third parties, except to its Representatives, and then only on a need-to-know basis under nondisclosure obligations at least as protective as this Agreement. Each party remains responsible for the use of Confidential Information by its Representatives and, in the event of discovery of any unauthorized use or disclosure, must promptly notify the other party.

 

5.3 Disclosure required by law. A party may disclose the other’s Confidential Information if required by law, but only after it notifies the other party (if legally permissible) to enable the other party to seek a protective order.

 

5.4 Duration of Confidentiality Obligation. These obligations apply: (1) for Customer Data, until it is deleted by Publisher; and (2) for all other Confidential Information, for a period of five years after a party receives the Confidential Information.

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6. SERVICE LEVEL AGREEMENTS (SLA)

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6.1 Publisher may offer further availability and support obligations for an Offering. Such service level agreement (“SLA”) will be made available by the Publisher at the applicable URL for such SLA or as otherwise communicated to Customer

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6.2 Publisher will have no obligation or liability to support, maintain or update the Offering in addition to the obligations set out in the SLA.

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6.3 Publisher reserves the right to update or modify the Offering at its sole discretion.

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6.4 Publisher has no obligation to update the Offering or any part thereof and disclaims all liability for interruption of the services due to updating the Offering.

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7. VERIFYING COMPLIANCE

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7.1 Customer must keep records relating to Offerings it and its Affiliates use or distribution. At Publisher’s expense, Publisher may verify Customer’s and its Affiliates’ compliance with this Agreement by directing an independent auditor (under nondisclosure obligations) to conduct an audit or ask Customer to complete a self-audit process. Customer must promptly provide any information and documents that Publisher or the auditor reasonably requests related to the verification and access to systems running the Offerings. If verification or self-audit reveals any unlicensed use, Customer must order sufficient licenses to cover the period of its unlicensed use. The audits may be conducted more frequently, if required by the party’s auditors and/or regulators, of books and records related to this Agreement. The expenses for all such audit will be borne by the party conducting the audit. All information and reports related to the verification process will be Confidential Information and used solely to verify compliance

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7.2 Upon request, Publisher will make available to Customer all information necessary to conduct an audit and demonstrate compliance under GDPR provisions for the processing of Personal Data. Customer may request information through a security questionnaire or self-attestation.

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8. REPRESENTATION AND WARRANTIES

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8.1 Publisher continuously represents and warrants that:

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a. it has full rights and authority to enter into, perform under, and grant the rights in, this Agreement;

b. its performance will not violate any agreement or obligation between it and any third party;

c. the Offering will substantially conform to the Documentation;

d. the Offering will not:

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i. to the best of Publisher’s knowledge, infringe or violate any third-party patent, copyright, trademark, trade secret, or other proprietary right; or

ii. contain viruses or other malicious code that will degrade or infect any products, services, software, or Customer’s network or systems, and

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e. while performing under this Agreement, Publisher will comply with law, including Data Protection Laws and Anti-Corruption Laws, and will provide training to its employees regarding Anti-Corruption Laws.

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8.2 DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE OFFERING IS PROVIDED AS IS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PUBLISHER DISCLAIMS ANY AND ALL OTHER WARRANTIES (EXPRESS, IMPLIED OR STATUTORY, OR OTHERWISE) INCLUDING OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING BY A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR COURSE OF PERFORMANCE. PUBLISHER DOES NOT WARRANT UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE SERVICES. THE CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO THEIR DEVICES OR LOSS OF DATA WHICH MAY RESULT IN CONNECTION WITH THE USE OF THE OFFERING.

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9. INDEMNITY

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9.1 CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD PUBLISHER HARMLESS FROM ANY THIRDPARTY CLAIMS, SUITS, ACTIONS OR PROCESSING DIRECTED AGAINST PUBLISHER OR ANY OF ITS AFFILIATES, INCLUDING ITS AND THEIR OFFICERS AND EMPLOYEES, FOR ANY SUCH INFRINGEMENT, BREACH OR VIOLATION, INCLUDING, FOR AVOIDANCE OF DOUBT, ANY ALLEGED INFRINGEMENT, BREACH OR VIOLATION.

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10. LIMITATION OF LIABILITY

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10.1 TO THE EXTENT PERMISSIBLE BY APPLICABLE LAWS, PUBLISHER WILL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGE (INCLUDING, BUT NOT LIMITED TO, DAMAGE IN THE FORM OF BUSINESS LOSSES, TAX PENALTIES, OR OTHER DEBTS TO ADMINISTRATIVE AUTHORITIES, LOSS OF PROFIT, DAMAGE TO BUSINESS RELATIONS, AND LOSS OR CORRUPTION OF DATA) ARISING OUT OF THE USE OR INABILITY TO USE THE OFFERING OR THE FREE TRIAL, EVEN IF PUBLISHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL PUBLISHER’S TOTAL LIABILITY TO CUSTOMER FOR ALL DAMAGES EXCEED THE AMOUNT PAID FOR THE OFFERING IN THE LAST 12 MONTHS PRECEDING THE CLAIM OR EUR 100, whichever is higher

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10.2 FOR THE AVOIDANCE OF DOUBT, IN NO EVENT SHALL PUBLISHER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, LOSS OR CORRUPTION OF DATA ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY THIRD-PARTY SOFTWARE (SUCH AS DYNAMICS 365 BUSINESS CENTRAL), EVEN IF PUBLISHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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11. DISCLAIMERS AND LIMITATION OF LIABILITY FOR SPECIFIC EXTENSIONS

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11.1 PUBLISHER DOES NOT WARRANT THAT THE DATA INCLUDED IN CASH FLOW EXTENSION WILL BE UP TO DATE, ACCURATE OR COMPLETE AND PUBLISHER WILL NOT BE LIABLE FOR ANY DAMAGES ARISING IN CONNECTION WITH THE SUBSEQUENT FINANCIAL DECISIONS, CHANGES TO SUCH DATA OR SHARING OF SUCH DATA.

 

11.2 PUBLISHER DOES NOT WARRANT THAT THE CONTENTS OF THE DOCUMENTS SIGNED IN THE ELECTRONIC SIGNATURE EXTENSION WILL BE UP TO DATE, ACCURATE OR COMPLETE AND PUBLISHER WILL NOT BE LIABLE FOR ANY DAMAGES ARISING IN CONNECTION WITH THE LOSS, DELETION OR QUALITY OF DATA, OR FOR SHARING ACCESS INFORMATION TO THE ELECTRONIC SIGNATURE EXTENSION.

 

11.3 TO THE EXTENT PERMISSIBLE BY APPLICABLE LAWS, PUBLISHER WILL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGE (INCLUDING, BUT NOT LIMITED TO, DAMAGE IN THE FORM OF BUSINESS LOSSES, TAX PENALTIES, OR OTHER DEBTS TO ADMINISTRATIVE AUTHORITIES, LOSS OF PROFIT, DAMAGE TO BUSINESS RELATIONS, AND LOSS OR CORRUPTION OF DATA) ARISING OUT OF THE USE OR INABILITY TO USE THE BANK INTEGRATION EXTENSION, EVEN IF PUBLISHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

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12. PRICING AND PAYMENT

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12.1 License to Offerings will only be granted subject to the payment of the fees specified in each Order (“License Fee”).

 

12.2 License Fee will be due 30 days upon receiving an invoice from Publisher containing payment information.

 

12.3 If Customer fails to pay the License Fee when due, Publisher may terminate Customer’s license and deny the Customer access to the Offering until the License Fee is paid.

 

12.4 After Publisher receives the License Fee, the Customer will receive a license key which will grant the Customer access to the relevant Offering for the duration of the purchased license.

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13. TERM AND TERMINATION

 

13.1 Term. This Agreement is effective until terminated by a party, as described below. The term for each Order will be set forth therein.

 

13.2 Termination without cause. Unless otherwise set forth in an Order, either party may terminate this Agreement or any Order without cause on 60 days’ notice. After termination, licenses granted on a subscription basis will continue for the duration of the subscription period(s), subject to the terms of this Agreement. Publisher will not provide refunds or credits for any partial subscription period(s) if the Agreement or an Order is terminated without cause.

 

13.3 Termination for cause. Without limiting other remedies it may have, either party may terminate this Agreement or any Order immediately on notice if (i) the other party materially breaches the Agreement or an Order, and fails to cure the breach within 30 days after receipt of notice of the breach; or (ii) the other party becomes Insolvent. Upon such termination, the following will apply:

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a. All licenses granted under this Agreement will terminate immediately.

b. All amounts due under any unpaid invoices will become due and payable immediately. For metered Offerings billed periodically based on usage, Customer must immediately pay for unpaid usage as of the termination date.

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13.4 Data Deletion. Upon termination for cause, Customer must cease all use of the Offering and destroy all copies of the Offering and all its component parts in Customer’s possession or control no later than 30 days after termination of the Agreement.

 

13.5 Suspension. Publisher may suspend use of the Offering without terminating this Agreement during any period of material breach. Publisher will give Customer reasonable notice before suspending the Offering. Suspension will only be to the extent reasonably necessary.

 

13.6 Survival. The terms of this Agreement, including the applicable Order, that are likely to require performance, or have application to events that may occur, after the termination or expiration of this Agreement or any Order, will survive termination or expiration, including all indemnity obligations and procedures.

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14  REFUND POLICY

 

14.1 No Refunds. Publisher does not offer refunds on any of its products or services. By agreeing to this EULA, Customer acknowledges and accepts that all purchases are final and non-refundable. This policy is in place to maintain our focus on delivering high-quality products and services, as well as to ensure fairness and consistency for all customers.

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15. MISCELLANEOUS

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15.1 Entire Agreement. This Agreement supersedes all prior and contemporaneous communications, whether written or oral, regarding the subject matter covered in this Agreement. If there is a conflict between any parts of this Agreement, the following order of precedence will apply:

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a. Order;

b. this Agreement;

c. Service Level Agreement (SLA); and

d. Documentation.

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15.2 Amendments. Publisher may modify this Agreement from time to time by posting the revised terms on the Marketplace. Customer’s continued use of the Offering constitutes the Customer’s acceptance of the modified terms of the Agreement. In case the changes to the Agreement would materially affect Customer’s rights or obligation under this Agreement, the Customer will be notified and will have the option to terminate this Agreement by sending notice to the Publisher within 30 days after receiving the notification.

 

15.3 Assignment. Either party may assign this Agreement to an Affiliate, but it must notify the other party in writing of the assignment. Customer consents to the assignment to an Affiliate or third party, without prior notice, of any rights Publisher may have under this Agreement to receive payment and enforce Customer's payment obligations, and all assignees may further assign such rights without further consent. Furthermore, either party may assign this Agreement without the consent of the other party in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of such party’s assets. Any other proposed assignment of this Agreement must be approved by the non-assigning party in writing. Assignment will not relieve the assigning party of its obligations under the assigned Agreement. Any attempted assignment without required approval will be void.

 

15.4 Severability. If any part of this Agreement is held to be unenforceable, the rest of the Agreement will remain in full force and effect.

 

15.5 Waiver. Failure to enforce any provision of this Agreement will not constitute a waiver. Any waiver must be in writing and signed by the waiving party.

 

15.6 No third-party beneficiaries. This Agreement does not create any third-party beneficiary rights except as expressly provided by its terms.

 

15.7 Notices. Notices must be in writing and will be treated as delivered on the date received at the address, date shown on the return receipt, email transmission date, or date on the courier or fax confirmation of delivery. Notices to Publisher must be sent to the address stated in the Order. Notices to Customer will be sent to the individual at the address Customer identifies on its account as its contact for notices. Publisher may send notices and other information to Customer by email or other electronic form.

 

15.8 Applicable law. This Agreement will be governed by the laws of Malta without regard to its provisions on conflicts of laws. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, will be finally settled by arbitration in accordance with the laws of Malta. The seat of arbitration will be Malta and the language to be used in the arbitral proceedings will be English. The arbitration, the award and any documents or other information submitted to the arbitration tribunal will be final and binding and will be considered as confidential information pursuant to this Agreement. Notwithstanding the foregoing, Publisher reserves the right to collect, or seek the collection, of any outstanding payment or debt in the jurisdiction of the Customer.

 

15.9 Order of precedence. The body of this Agreement will take precedence over any conflicting terms in other documents that are part of this Agreement that are not expressly resolved in those documents. Terms in an amendment control over the amended document and any prior amendments concerning the same subject matter.

 

15.10 Compliance with laws. Publisher will comply with all laws and regulations applicable to its provision of the Offerings. Publisher will obtain and maintain any approvals, licenses, filings, or registrations necessary to its performance, and will comply with all law (including law related to export, corruption, money laundering, or any combination of these). Customer must also comply with laws applicable to their use of the Offerings.

 

15.11 Construction. Neither party has entered this Agreement in reliance on anything not contained or incorporated in it. This Agreement is in English only. Any translation of this Agreement into another language is for reference only and without legal effect. If a court of competent jurisdiction finds any term of the Agreement unenforceable, the Agreement will be deemed modified as necessary to make it enforceable, and the rest of the Agreement will be fully enforced to affect the parties’ intent. Lists of examples following “including”, “e.g.”, “for example”, or the like are interpreted to include “without limitation,” unless qualified by words such as “only” or “solely.” This Agreement will be interpreted according to its plain meaning without presuming that it should favor either party. Unless stated or context requires otherwise:

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a. all internal references are to this Agreement and its parties;

b. all monetary amounts are expressed and, if applicable, payable, in EUR;

c. URLs are understood to also refer to successors, localizations, and information or resources linked from within        websites at those URLs;

d. a party’s choices under this Agreement are in its sole discretion, subject to any implied duty of good faith;

e. “written” or “in writing” means a paper document only, except where email is expressly authorized;

f. “days” means calendar days;

g. “may” means that the applicable party has a right, but not a concomitant duty,

h. “partner,” if used in this Agreement or related documents, is used in its common, marketing sense and does           not imply a partnership;

i. “current” or “currently” means “as of the Effective Date” but “then-current” means the present time when the          applicable right is exercised or performance rendered or measured;

j. “notify” means to give notice under subsection (i) above; and

k. a writing is “signed” when it has been hand-signed (i.e., with a pen) or signed via an electronic signature               service by a duly authorized representative of the signing party.

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16. DEFINITIONS

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“Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party.

 

“Anti-Corruption Laws” means all laws against fraud, bribery, corruption, inaccurate books and records, inadequate internal controls, money-laundering, and illegal software, including the U.S. Foreign Corrupt Practices Act.

 

“Bank Integration Extension” means the extension Citibank Integration available on the Marketplace which allows the Customer to issue payment orders and share payment or bank information with no or very little authorization.

 

“Cash Flow Extension“ means the extension Cash Flow by Currency available on the Marketplace Which allows the Customer to prepare their cash flow forecasts according to different currencies.

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“Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.

 

“Confidential Information” is defined in the “Confidentiality” section.

 

“Customer Data” means all data, including all text, sound, software, image or video files that are provided to Publisher or its Affiliates by, or on behalf of, Customer and its Affiliates through use of the Offering. Customer Data does not include Support Data.

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“Data Protection Law” means any law applicable to Publisher or Customer, relating to data security, data protection and/or privacy, including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to processing of personal data and the free movement of that data (“GDPR”), and any implementing, derivative or related legislation, rule, regulation, and regulatory guidance, as amended, extended, repealed and replaced, or re-enacted.

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“Documentation” means all user manuals, handbooks, training material, requirements, and other written or electronic materials Publisher makes available for, or that result from use of, the Offering.

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“End User” means any person Customer permits to use an Offering or access Customer Data.

 

“Electronic Signature Extension” means the extension DocuSign Integration available on the Marketplace which only facilitates electronic signatures but does provide authorized certification of electronic signatures.

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“Feedback” means ideas, suggestions, comments, input, or know-how, in any form, that one party provides to the other in relation to recipient’s Confidential Information, products, or services. Feedback does not include sales forecasts, future release schedules, marketing plans, financial results, and high-level plans (e.g., feature lists) for future products.

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“Insolvent” means admitting in writing the inability to pay debts as they mature; making a general assignment for the benefit of creditors; suffering or permitting the appointment of a trustee or receiver for all or any of its (i.e., the non-terminating party’s) assets, unless such appointment is vacated or dismissed within 60 days from the date of appointment; filing (or having filed) any petition as a debtor under any provision of law relating to insolvency, unless such petition and all related proceedings are dismissed within 60 days of such filing; being adjudicated insolvent or bankrupt; having wound up or liquidated; or ceasing to carry on business.

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“Offering” means all services, websites (including hosting), solutions, platforms, and products identified in an Order and that Publisher makes available under or in relation to this Agreement, including the software, equipment, technology, and services necessary for Publisher to provide the foregoing. Offering availability may vary by region.

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“Order” means an ordering document used to transact the Offering via the Marketplace.

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“Personal Data” means any information relating to an identified or identifiable natural person.

 

“Representatives” means a party’s employees, Affiliates, contractors, advisors and consultants.

 

“Standard Contractual Clauses” means the standard data protection clauses for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, as described in Article 46 of the GDPR.

 

“Subcontractor” means any third party: (1) to whom Publisher delegates its obligations under this Agreement, including a Publisher Affiliate not contracting directly with Customer through an Order; or (2) who, in performing under a contract between it and Publisher or a Publisher Affiliate, stores, collects, transfers or otherwise processes Personal Data (obtained or accessed in connection with performing under this Agreement) or other Customer Confidential Information.

 

“Support Data” means all data, including all text, sound, video, image files, or software, that are provided to Publisher by or on behalf of Customer (or that Customer authorizes Publisher to obtain from an Offering) through an engagement with Publisher to obtain technical support for the Offering covered under this Agreement.

 

“Use” means to copy, download, install, run, access, display, use or otherwise interact with.

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