SPAYA is an IKTOS Service that is based on deep machine learning.
SPAYA enables Customer to obtain output data that are created by the Service in furtherance to Customer input data in the field of chemistry.
SPAYA enables professionals in chemistry to create their own community in order to improve their productivity, connections and networks.
This subscription Agreement governs Customer’s right to Use SPAYA.
Capitalized terms have the definitions set forth herein.
If Customer registers for a Trial or for Free Service, the applicable provisions of this Agreement will also govern that Trial or those Free Service.
Customer agrees to the terms of this Agreement by (1) clicking a box indicating acceptance, (2) executing an order form that references this Agreement, (3) paying the relevant Subscription Fees, or (4) using Free Service.
IKTOS’s direct competitors are prohibited from accessing SPAYA, except with IKTOS’s prior written consent. In addition, SPAYA may not be accessed for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on January 19, 2021. It is effective between Customer and IKTOS as of the date upon which Customer accepts it.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Beta Service” means IKTOS services or functionality that may be made available to Customer to try at its option at no additional charge which is clearly designated as beta or by a similar description.
“Business Partner” means third party with which we have a contractual arrangement whereby they may remunerate us to introduce Third-Party Products and Third-Party Service to You.
“Confidential Information” means, unless otherwise agreed between the Parties in an Order:
- the terms and conditions of all Orders (including pricing),
- with respect to the Customer (IKTOS is the receiving party): the Input Data, the set of Output Data that, taken as a whole, enables direct identification of the Input Data as set forth in the Documentation and the Content of all messages exchanged between one Customer/User and another Customer/User,
- with respect to IKTOS (Customer is the receiving party): (a) the Software and its Documentation, and other Service Resources, including, without limitation, the following information relating to the Software: (i) programs (object and source codes), programming techniques and concepts, processing methods, system designs integrated with the Software; (ii) performance test results, manuals, program listings, data structures, flow diagrams, logic diagrams, functional specifications, file formats; and (iii) discoveries, inventions, concepts, drawings, flow diagrams, documentation, product features, features of application programming interfaces, techniques and processes relating to the Software; (b) research and development or studies carried out by IKTOS; and (c) product offerings, Content provided by IKTOS partners, product pricing, product availability, technical drawings, algorithms, processes, ideas, techniques, formulas, data, schemas, trade secrets, knowledge - make, improvements, marketing plans, forecasts and strategies, and
- any information shared among the Parties in connection with the Consulting Services.
However, 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, (iv) was independently developed by the receiving party, or (v) is voluntarily shared by Customer with other Users.
For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to information exchanged between the parties in connection with the evaluation of any IKTOS services.
“Content” means information obtained by IKTOS from publicly available sources, its Business Partners or other third-party Content providers or, shared by Customers with other Customers through the Service or Beta Service, as more fully described in the Documentation.
“Controller” means the Customer as Customer determines the purposes and means of the Processing of Personal Data. By entering into this Agreement, Customer, acting as the Controller, and the Processor (IKTOS) enters into the Data Processing Agreement with IKTOS.
“Consulting Services" means the professional services that We may provide to You and which may include training, installation, integration or other consulting services, as specified in any Order.
“Customer” means (i) the individual using the Service on his or her own behalf, or (ii) the legal entity which have entered into an Order Form and its Affiliates (for so long as they remain Affiliates) as set forth in such Order Form.
“Customer Data” means all data submitted by Customer to the Service, including Personal Data, Input Data and Output Data.
“Data Protection Laws and Regulations” means all laws and regulations, including GDPR, applicable to the Processing of Personal Data under the Agreement.
“Free Service” means Service that IKTOS makes available to Customer free of charge and that comprises the limited features as set forth in the Documentation. Free Service exclude Trial and Purchased Service.
“Trial” means Service that IKTOS makes available to Customer free of charge for a limited period of time and that comprises the limited features as set forth in the Documentation and in an Order. Trial excludes Free Service and Purchased Service.
“GDPR” means the 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 the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
“IKTOS”, "We", "Us" or “Our” means IKTOS or its Affiliates.
"Intellectual Property Rights" means patents of any kind, rights in designs and models, utility models and other similar rights relating to inventions or innovations, copyrights, trade secrets or confidentiality rights, trademarks and trade names, and any other intangible property rights, including, in particular, applications and registrations relating to all the above mentioned elements, in any country, pursuant to applicable laws therein.
“Input Data” means all data submitted by Customer in order to obtain the Output Data.
“Malicious Code” means any kind of software such as code, files, scripts, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
"Order" or "Order Form" means the IKTOS-approved form or online subscription process by which You agree to subscribe to the Purchased Service, any Consulting Services or a Trial.
“Output Data” means data generated by the Service such as synthesis schema, chemical structures or chemical ingredients as a result of the Processing by the Service of the Input Data.
“Paid Customers” means those Customers that use the Purchased Service.
“Personal Data” means any information uploaded by You to the Service and/or the Order Form relating to (i) an identified or identifiable natural person including a User and, (ii) an identified or identifiable legal entity (where such information is protected similarly as personal data or personally identifiable information under applicable Data Protection Laws and Regulations).
“Processing” means any operation or set of operations which is performed upon the Customer Data, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
“Purchased Service” means the Service that Customer purchases under an Order Form, as distinguished from Free Service or those provided pursuant to a Trial. Purchased Service is also called “Full Service”.
“Service” means SPAYA as it is provided to a Paid Customer under an Order Form, or provided to Customer as Free Service or under a Trial, and made available online by remote internet access (SaaS) by IKTOS, including any associated any IKTOS offline or mobile components, all as described in the Documentation last updated at the date of subscription. Service includes support and maintenance to SPAYA as set forth in the Documentation “Service” excludes Content, Input Data, Output Data and Third-Party Products.
"Subscription Fee" means the amount You pay for the Purchased Service.
"Subscription Term" means the initial term of Your subscription to SPAYA, as specified on Your Order Form(s), and each subsequent renewal term (if any). For Free Service and Trial, the Subscription Term will be the period during which You are allowed to have an account to access the Service.
"Third-Party Products" means non-embedded products and professional services that are provided by Business Partners or other third parties which interoperate with or are used in connection with the Service. These products and services may include non-IKTOS apps.
"Third-Party Sites" means Business Partners or other third-party websites linked to from within the Service.
"Users" means the individuals employed by, representing or consulting a Customer that is a legal entity who are authorized to Use the Purchased Service for such Customer and have unique identifications and passwords for the Purchased Service.
"You", "Your" means or refer to Customer.
2. NATURE OF AGREEMENT
This is an Agreement for access to and use of the Service, and You are not granted a license to any software by this Agreement. The Service is protected by intellectual property laws, it belongs to and is the property of IKTOS, and We retain all ownership rights to them. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Service in whole or in part, by any means, except as expressly authorized in writing by Us. You may not use Our company name (IKTOS) or Our trademarks without Our prior written permission. If You do not agree to this Agreement, please do not access or otherwise use Our Service. If You use Our Service, it means that You agree to this Agreement. Any individual (User) who agrees to this Agreement on behalf of a legal entity, represents to have the authority to bind such entity and its affiliates to these terms and conditions, in which case the term “Customer” shall refer to such entity and its affiliates. If such authority may not be warranted such individual must not accept this Agreement and may not use the services on behalf of such legal entity.
2.1. To provide Our Service, we need to Process the Customer Data. The type of information We Process depends on how You use Our Service.
2.2. Based on the information that We Process, We may propose You information regarding, or related to Third-Party Products or Third-Party Sites that may be of interest to You, always to the extent permitted by applicable law and subject to this Agreement. We do not sell Your Personal Data directly to any third party unless You give us specific permission. Likewise, We do not operate profiling of Customers unless You give us specific permission. We do however provide aggregated data to Our Business Partners about the use of Our Service and the performance of their products and services offerings.
3. USE OF SERVICES AND CONTENT
3.1. Subscription Types. We offer three main types of subscriptions, the detailed features and the terms of which are set forth in the Documentation: Purchased Service, Trial and Free Service.
3.2. Subscriptions. Unless otherwise provided in the Order Form or Documentation, (a) Purchased Service and access to Content are purchased as subscriptions for the term stated in the such Order Form, (b) subscriptions for Purchased Service may be added during a subscription term at the same pricing as the underlying Subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying Subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future features, or dependent on any oral or written public comments made by IKTOS regarding future features.
3.3. Usage Limits. The usage limits that apply to You will be specified in Your Order Form, this Agreement or in Our Documentation.
For Our Trial and Free Service, these limits may also be designated only from within the Service itself.
Regardless of the type of Subscription, You must be 18 years of age (or 20 years of age, if You are subject to the laws of Japan) or older to Use the Service. For Paid Customer, if we make modifications to the limits set forth in the Service that would negatively impact You, these modifications will not apply to You until the start of Your next renewal Subscription Term. On renewal, the current product usage limits in Our Service will apply to Your subscription, unless You and we otherwise agree. For Our Free Service and Trial Subscriptions, We may change the limits that apply to Your use at any time in Our sole discretion without notice to You, regardless of whether or not these are used in conjunction with other products or services for which You pay us a fee.
3.4. Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Input Data and Personal Data, the means by which Customer acquired Input Data, Customer’s use of Input Data with the Service, and the interoperation of any Third Party Products with which Customer uses Service or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Service and Content, and notify IKTOS promptly of any such unauthorized access or use, (d) use the Service and Content only in accordance with this Agreement, the Documentation, the Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Third Party Products with which Customer uses Service or Content. Any use of the Service in breach of the foregoing by Customer or Users that in IKTOS’s reasonable judgment breaches or threatens the performance or the security or integrity , integrity or availability of the Service or the Customer Data, may result in IKTOS’s immediate suspension of the Service, however IKTOS will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such breach or threat prior to any such suspension.
3.5. Usage Restrictions. Customer will not (a) make the Service or Content available to anyone other than Customer or Users, or use the Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease the Service or Content, or include the Service or Content in a service bureau or outsourcing offering, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, (f) attempt to gain unauthorized access to the Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of the Service or Content in a way that circumvents a contractual usage limit, or use the Service to access or use any of IKTOS intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on the Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of the Service or Content, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile the Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Service are within the scope of any patent.
Customer will not (i) use or launch any automated system, including, "robots," "spiders," or "offline readers," that sends more request messages to Our servers in a given period of time than a human can reasonably produce in the same period by Using a conventional browser; (ii) use the Service in any manner that damages, disables, overburdens, or impairs any of Our information systems or websites or interferes with any other party's use of the Service; (iii) attempt to gain unauthorized access to the Service; (iv) access the Service other than through Our interface; or (v) use the Service for any purpose or in any manner that is unlawful or prohibited by this Agreement.
3.6. Modifications. We modify the Service from time to time, including by adding or deleting features and functions, in an effort to improve Your experience. For Our Full-Service Subscriptions, we will not make changes to the Service that materially reduce the functionality provided to You during the Subscription Term. For Our Trial and Free Service, We may make changes that materially reduce the functionality provided to You during the Subscription Term.
3.7. Customer Support. If You are a Paid Customer, the support that will be provided to You is set forth in the Documentation. If You are a Customer of the Free Service or a Trial, we attempt to respond to email and in-app support questions within one business day; in practice, Our responses are generally even faster. We do not promise or guarantee any specific response time. We may limit or deny Your access to support if we determine, in Our reasonable discretion, that You are acting, or have acted, in a way that results or has resulted in misuse of support or abuse of IKTOS representatives.
4. IKTOS RESPONSIBILITIES
4.1. Provision of Purchased Service. IKTOS will (a) make the Purchased Service and Content available to Customer pursuant to this Agreement, the Documentation and any applicable Order Form, (b) provide applicable IKTOS standard support for the Purchased Service to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Service available 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond IKTOS’s reasonable control, including, for example, an act of God, act of government, pandemic, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving IKTOS employees), internet service provider failure or delay, Third Party Products, or denial of service attack, and (d) provide the Service in accordance with applicable laws and government regulations (i.e., without regard for Customer’s particular use of the Service), and subject to Customer’s use of the Service in accordance with this Agreement, the Documentation and the applicable Order Form.
As long as You have paid all fees owed to Us, if You make a written request within thirty (30) days after termination or expiration of Your Subscription, we will provide You with temporary access to the Purchased Service to retrieve, or we will provide You with copies of, all Customer Data then in Our possession or control. If we provide You with temporary access to the account, We may charge a re-activation fee. We may withhold access to Input Data and Output Data until You pay any fees owed to Us. Thirty (30) days after termination or expiration of Your Subscription, we will have no obligation to maintain or provide You such Customer Data and may retain the same in Our database for the purpose set forth herein in the Agreement.
4.2. Trial. Use of a Trial is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control If Customer registers for a Trial by executing the relevant Order Form, IKTOS will make the Service available to Customer on a Trial basis free of charge until the earlier of (a) the end of the Trial period for which Customer registered to Use the Service, or (b) the start date of any Purchased Service subscription ordered by Customer for such Service, or (c) termination by IKTOS in its sole discretion. Additional Trial terms and conditions may appear on the Trial registration web page or in an Order. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
4.3. Free Service. IKTOS may make Free Service available to Customer. Use of Free Service is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Service is provided to Customer without charge up to certain limits as described in the Documentation. Usage over these limits requires Customer’s purchase of additional resources or services. Customer agrees that IKTOS, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Service or any part thereof. Customer agrees that any termination of Customer’s access to the Free Service may be without prior notice, and Customer agrees that IKTOS will not be liable to Customer or any third party for such termination.
4.4. Exclusion of responsibility for Trial and Free Service. ANY DATA CUSTOMER SUBMITS TO THE SERVICE DURING CUSTOMER’S TRIAL OR FREE SERVICE WILL BE DELETED FROM CUSTOMER’S ACCOUNT AFTER TERMINATION OF THE SUBSCRIPTION PERIOD UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICE AS THOSE COVERED BY THE TRIAL OR THE FREE SERVICE, PURCHASES UPGRADED SERVICE, OR EXPORTS SUCH DATA IF/WHERE ENABLED BY THE SERVICE, BEFORE THE END OF THE SUBSCRIPTION PERIOD.
NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY IKTOS” SECTION BELOW, DURING THE FREE SERVICE OR THE TRIAL, THE SERVICE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND IKTOS SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO SUCH SERVICE UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE IKTOS’S LIABILITY WITH RESPECT TO THE SERVICE PROVIDED DURING SUCH SUBSCRIPTION PERIOD SHALL NOT EXCEED $1,000.00.
WITHOUT LIMITING THE FOREGOING, IKTOS AND ITS AFFILIATES DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE SERVICE OR TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICE DURING THE FREE SERVICE OR TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) OUTPUT DATA PROVIDED DURING THE FREE SERVICE OR TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO IKTOS AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICE DURING THE FREE SERVICE OR TRIAL PERIOD, USE OF THE OUTPUT DATA, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
CUSTOMER SHALL REVIEW THE DOCUMENTATION DURING THE FREE SERVICE OR TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICE BEFORE MAKING A PURCHASE.
4.5. Consulting Services. You may purchase Consulting Services by placing an Order with Us. Unless we otherwise agree, the Consulting Services we provide are described in the Documentation and will be delivered in French or English as set forth in the Order. Fees for these Consulting Services are in addition to Your Subscription Fee. If You purchase Consulting Services that recur, they will be considered part of Your subscription and will renew in accordance with Your subscription. All Consulting Services are performed remotely, unless specified in the Order.
For Consulting Services performed on-site, You will reimburse Us Our reasonable costs for all expenses incurred in connection with the Consulting Services. We might provide some or all elements of the Consulting Services through third party service providers.
4.6. Protection of Data. IKTOS will maintain commercially appropriate physical and technical safeguards for the security and integrity of the Customer Data, all as described herein and in the Documentation.
We regularly monitor Our systems for possible vulnerabilities and attacks. We will use reasonable commercial efforts to avoid that Our Service be accessed by any unauthorized third party and will inform You promptly of the occurrence of such unauthorized access (a Data Incident). We shall make reasonable efforts to identify the cause of such Data Incident and take those steps as we deem necessary and reasonable in order to remediate the cause of such a Data Incident to the extent the remediation is within Our reasonable control. The foregoing does not apply to incidents that are caused by Customer or Users.
We may monitor use of the Service by all of Our Customers and use the information gathered in an aggregate and anonymous manner. You agree that We may use and publish such aggregated information, provided that it does not incorporate any specific Customer Data. We may, however, use such Customer Data as part of Our internal data processes to develop and improve Our Service.
Since SPAYA operates with a machine learning algorithm, Customer acknowledges and agrees that the machine Processing of the Customer Data will mechanically cause a change in the operating patterns of the software run by the Service. Customer acknowledges and agrees that IKTOS extracts, stores and Processes the Customer Data in a data base which is made by IKTOS (IKTOS is the maker of such database) (i) without such data being able to directly or indirectly identify the Customer or the User, and (ii) for the purpose of training and improving its machine learning process.
You consent to the Processing of the Customer Data in the EU.
4.7. Compliance with Data Protection Laws and Regulations. IKTOS shall Process Personal Data in accordance with the GDPR requirements and shall only Process Personal Data on behalf of and in accordance with Customer’s documented instructions for the following purposes: (i) Processing in accordance with the Agreement; (ii) Processing initiated by Customers or Users in their use of the Service; and (iii) Processing to comply with other documented reasonable instructions provided by Customer (e.g., via email) where such instructions are consistent with the terms of the Agreement.
4.8. IKTOS Personnel. IKTOS will be responsible for the performance of its obligations hereunder by its personnel (including its employees and contractors) as specified in this Agreement.
4.9. Beta Service. From time to time, IKTOS may make Beta Service available to Customer at no charge. Customer may choose to try such Beta Service or not in its sole discretion. Any use of Beta Service by Customer is deemed a use of Free Service.
5. THIRD PARTY PRODUCTS AND SERVICES
5.1 Non-IKTOS Products and Service. IKTOS or Business Partners may make available Third-Party Products to You. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Business Partners, Third-Party Product or Sites or service is solely between Customer and such Business Partner. IKTOS does not warrant or support Third-Party Products or Third-Party Sites, whether or not they are designated by IKTOS as “certified” or otherwise, unless expressly provided otherwise in an Order Form.
5.2 Integration with Third Party Products. The Service may contain features designed to interoperate with Third-Party Products. IKTOS cannot guarantee the continued availability of such service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation with the corresponding Service features in a manner acceptable to IKTOS.
5.3 Removal of Content and Third-Party Products. If IKTOS is required by any Third-Party rights holder to remove Content or receives information that Content provided to Customer may violate applicable law or Third-Party rights, IKTOS may discontinue Customer’s access to Content through the Service.
6. FEES AND PAYMENT
6.1. Fees. All fees are expressed in Euros or US Dollars. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Service subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
6.2. Invoicing and Payment. Customer will provide IKTOS with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to IKTOS. If Customer provides credit card information to IKTOS, Customer authorizes IKTOS to charge such credit card for all Purchased Service listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, IKTOS will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, Fees are due at the time of Subscription or invoiced fees are due 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to IKTOS and notifying IKTOS of any changes to such information. All payments due hereunder shall be made in euros.
6.3. Overdue Charges. If any invoiced amount is not received by IKTOS by the due date, then without limiting IKTOS’s rights or remedies, (a) those charges may accrue late interest at the rate of 1% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) IKTOS may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.
6.4. Suspension of Service and Acceleration. If any charge owing by Customer hereunder is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized IKTOS to charge to Customer’s credit card), IKTOS may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such Agreements so that all such obligations become immediately due and payable, and suspend Service until such amounts are paid in full, provided that, other than for Customers paying by credit card or direct debit whose payment has been declined, IKTOS will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services to Customer.
6.5. Payment Disputes. IKTOS will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
6.6. Taxes. IKTOS's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If IKTOS has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, IKTOS will invoice Customer and Customer will pay that amount unless Customer provides IKTOS with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, IKTOS is solely responsible for taxes assessable against it based on its income, property and employees.
7. DATA BASE PROPRIETARY RIGHTS AND LICENSES
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, IKTOS, its Affiliates and Content providers reserve all of their right, title and interest in and to the Service and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
7.2. Customer’s data base Proprietary Rights. As between You and Us, You represent and warrant that you are the legitimate maker of the data base that contain the Input Data, to which You retain all rights. This Agreement does not grant us any ownership rights to the Input Data. However, we have the right to Process such Input Data as set forth in the Agreement.
7.3. Output Data. Output Data are generated by the Service and We draw Your attention that it may happen that other Customers obtain similar or same Output Data as a result of use of Our Service. You agree that We shall have no responsibility whatsoever and agree to hold us harmless in respect of Your use and protection of such Output Data.
As between You and Us, Output Data are subject to the following regime depending on Your subscription.
If you are a Paid Customer, the Output Data are deemed part of your data base. You may, subject to the foregoing paragraph and under Your sole responsibility, use whole or part of the Output Data and apply for any protection by any Intellectual Property Rights as You may deem appropriate. You may elect to make of publication of whole or part of the Output Data provided your publication acknowledges that such Output Data were obtained using SPAYA of IKTOS.
Output Data generated under a Trial or a Free Service are deemed part of Our database, of which We are the Maker. You may however, subject to the first paragraph of this section and under Your sole responsibility, use whole or part of the Output Data for research purposes only. Therefore, Output Data obtained by Customers other than Paid Customers may not be used for other purposes unless such Customers acquire the right to use the same as if they were a Paid Customer and pay the requested acquisition fee as is set out in the Service.
7.4. Access to and Use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.
7.6. License by Customer to Use Feedback. Customer grants to IKTOS and its Affiliates a worldwide, perpetual, irrevocable, royalty free license to Use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the Service.
8.1. Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality Agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, IKTOS may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Business Partners to the extent necessary to perform IKTOS’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein. This section 8 shall survive termination of the Agreement for three (3) years.
Customers may use a number of features of the Service (e.g. like, post, etc.) that will make the relevant Customer Data visible and shared with other users of the Service. In such event, IKTOS shall be discharged from any confidentiality obligations with respect to such Customer Data.
8.2. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
9. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS
9.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
9.2. IKTOS Warranties. IKTOS warrants to Paid Customer that during an applicable Subscription Term (a) the administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data described in this Agreement, the Order Forms and the Documentation are accurate, (b) IKTOS will not materially decrease the overall security of the Service, (c) the Service will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Third Party Products” section above, IKTOS will not materially decrease the overall functionality of the Service. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.
9.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.
10. INDEMNIFICATION AND REMEDIES
10.1. Indemnification by IKTOS. IKTOS will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by IKTOS in writing of, a Claim Against Customer, provided Customer (a) promptly gives IKTOS written notice of the Claim Against Customer, (b) gives IKTOS sole control of the defense and settlement of the Claim Against Customer (except that IKTOS may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives IKTOS all reasonable assistance, at IKTOS’s expense. If IKTOS receives information about an infringement or misappropriation claim related to the Service, IKTOS may in its discretion and at no cost to Customer (i) modify the Service so that they are no longer claimed to infringe or misappropriate, without breaching IKTOS’s warranties under “IKTOS Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Service are the basis of the Claim Against Customer; (2) a Claim Against Customer arises from the use or combination of the Service or any part thereof with software, hardware, data, or processes not provided by IKTOS, if the Service or use thereof would not infringe without such combination; (3) a Claim Against Customer arises from the use of a Free Service or Trial; or (4) a Claim against Customer arises from Content, a Third Party Product or Customer’s breach of this Agreement, the Documentation or applicable Order Forms.
10.2. Indemnification by Customer. Customer will defend IKTOS and its Affiliates against any claim, demand, suit or proceeding made or brought against IKTOS by a third party (a) alleging that that any Input or Output Data or Customer’s use thereof alone or with the Service infringes or misappropriates such third party’s intellectual property rights, or (b) arising from Customer’s use of the Service or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against IKTOS”), and will indemnify IKTOS from any damages, attorney fees and costs finally awarded against IKTOS as a result of, or for any amounts paid by IKTOS under a settlement approved by Customer in writing of, a Claim Against IKTOS, provided IKTOS (a) promptly gives Customer written notice of the Claim Against IKTOS, (b) gives Customer sole control of the defense and settlement of the Claim Against IKTOS (except that Customer may not settle any Claim Against IKTOS unless it unconditionally releases IKTOS of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against IKTOS arises from IKTOS’s breach of this Agreement, the Documentation or applicable Order Forms.
10.3. Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.
11. LIMITATION OF LIABILITY
11.1. Limitation of Liability. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED FIFTY PERCENT (50%) OF THE AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICE GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.
11.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW OR BREACH BY A PARTY OF THE CONFIDENTIALITY SECTION ABOVE.
12. TERM AND TERMINATION
12.1. Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated. Upon such termination, Users’ employer shall give clear instructions to Users with respect to the deletion of Users account.
12.2. Term of Purchased Service. The term of each Purchased Service shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at IKTOS’s applicable list price in effect at the time of the applicable renewal.
12.3. Term of Trial and Free Service. The term of Trial and Free Services are respectively set out in section 4.1. and 4.2 above.
12.4. Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.5. Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination” section above, IKTOS will refund Paid Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by IKTOS in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to IKTOS for the period prior to the effective date of termination.
12.6. Surviving Provisions. The sections titled “Free Trial”, “Free Service,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content and Third Party Products,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Data” will survive any termination or expiration of this Agreement for so long as IKTOS retains possession of Data.
13. GENERAL PROVISIONS
13.1. Export Compliance. The Service, Content, other IKTOS technology, and derivatives thereof may be subject to export laws and regulations. IKTOS, Customer and User, each represents that it is not named on any U.S. or French government denied-party list or similar dispositions. Customer will not use or access or permit any User to access or use the Service or Content in a U.S., EU or French-embargoed country or region or in violation of any U.S., EU or French export law or regulation.
13.2. Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement.
13.3. Entire Agreement and Order of Precedence. This Agreement is the entire Agreement between IKTOS and Customer regarding Customer’s use of Service and Content and supersedes all prior and contemporaneous Agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
13.4. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
13.5. Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
13.6. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.7. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
13.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, IKTOS will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.9. Governing Law, and Venue. All notices shall be forwarded to IKTOS at its registered offices, at 65 avenue de Prony, 75017 Paris, France. The law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, depend on where Customer is domiciled.
If Customer is domiciled in:
Governing law is:
Courts with exclusive jurisdiction are:
The USA, Mexico or a Country in Central or South America or the Caribbean
California and controlling United States federal law
San Francisco, California, U.S.A.
Ontario and controlling Canadian federal law
Toronto, Ontario, Canada
A Country in Europe, the Middle East or Africa, other than France and Germany
A Country in Asia or the Pacific region, other than Japan, Australia or New Zealand
Australia or New Zealand
New South Wales, Australia
New South Wales, Australia
13.10. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Service system administrator designated by Customer.
13.11. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
13.12. Local Law Requirements: France. With respect to Customers domiciled in France, in the event of any conflict between any statutory law in France applicable to Customer, and the terms and conditions of this Agreement, the applicable statutory law shall prevail.
13.13. Local Law Requirements: Germany. With respect to Customers domiciled in Germany, Section “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS”, Section “Exclusive Remedy”, and Section “LIMITATION OF LIABILITY” of this Agreement are replaced with the following sections respectively:
14. WARRANTIES FOR CUSTOMERS DOMICILED IN GERMANY
14.1. Agreed Quality of the Service. IKTOS warrants that during an applicable subscription term (b) IKTOS will not materially decrease the overall security of the Service, (c) the Service will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Third Party Products” section above, IKTOS will not materially decrease the overall functionality of the Service.
14.2. Reporting of Defects. Customer shall report any deviation of the Service from the “Agreed Quality of the Service” section (“Defect”) to IKTOS in writing without undue delay and shall submit a detailed description of the Defect or, if not possible, of the symptoms of the Defect. Customer shall forward to IKTOS any useful information available to Customer for rectification of the Defect.
14.3. Remedies resulting from Defects. IKTOS shall rectify any Defect within a reasonable period of time. If such rectification fails, Customer may terminate the respective Order Form provided that IKTOS had enough time for curing the Defect. The “Refund or Payment upon Termination” section, sentence and 1 and sentence 3 shall apply accordingly. If IKTOS is responsible for the Defect or if IKTOS is in default with the rectification, Customer may assert claims for the damage caused in the scope specified in the “Limitation of Liability” section below.
14.4. Defects in Title. Defects in title of the Service shall be handled in accordance with the provisions of Clause10 “Indemnification and Remedies”.
14.5. Exclusions. Customer shall have no claims under this Clause 9 “Warranty” if a Defect was caused by the Service not being used by Customer in accordance with the provisions of this Agreement, the Documentation and the applicable Order Forms.
14.6. Liability resulting from Indemnification for Customers domiciled in Germany. The below “Limitation of Liability” section shall apply to any claims resulting from this “Indemnification and Remedies” section.
15. LIMITATION OF LIABILITY FOR CUSTOMERS DOMICILED IN GERMANY
15.1. Unlimited Liability. The Parties shall be mutually liable without limitation
(a) in the event of willful misconduct or gross negligence,
(b) within the scope of a guarantee taken over by the respective party,
(c) in the event that a defect is maliciously concealed,
(d) in case of an injury to life, body or health,
(e) according to the German Product Liability Law.
15.2. Liability for Breach of Cardinal Duties. If cardinal duties are infringed due to slight negligence and if, as a consequence, the achievement of the objective of this Agreement including any applicable Order Form is endangered, or in the case of a slightly negligent failure to comply with duties, the very discharge of which is an essential prerequisite for the proper performance of this Agreement (including any applicable Order Form), the parties’ liability shall be limited to foreseeable damage typical for the contract. In all other respects, any liability for damage caused by slight negligence shall be excluded.
15.3. Liability Cap. Unless the parties are liable in accordance with “Unlimited Liability” section above, in no event shall the aggregate liability of each party together with all of its Affiliates arising out of or related to this Agreement exceed fifty percent (50%) of the total amount paid by Customer and its Affiliates hereunder for the Service giving rise to the liability in the 12 months preceding the first incident out of which the liability arose. The foregoing limitation will not limit Customer’s and its Affiliates’ payment obligations under the “Fees and Payment” section above.
15.4. Scope. With the exception of liability in accordance with the “Unlimited Liability” section, the above limitations of liability shall apply to all claims for damages, irrespective of the legal basis including claims for tort damages. The above limitations of liability also apply in the case of claims for a party’s damages against the respective other party’s employees, agents or bodies.