Dispatcher Paragon Cloud End-User License Agreement
Version No. of the End User License Agreement: EULA V 1.00
Effective date of this version of the End User License Agreement: 18/January/2022
Issue date of this version of the End User License Agreement: 18/January/2022
These license terms and conditions specified hereunder are binding upon all users of software and other types of intellectual property constituting a part of print management and scan workflow solution suite "Dispatcher Paragon Cloud", as such may be offered by KONICA MINOLTA, INC., having its principal place of business at 7-2, Marunouchi 2-chome, Chiyoda-ku, Tokyo, 100-7014 Japan (“Company“) from time to time, irrespective of the method of delivery of the solution and including but not limited to the online use of the solution as a Software as a Service (“Software“).
A Person being granted a specific License to Software consisting of modules and/or programs (if any) set out in: (i) the applicable License Certificate issued by the Company or generated by its License activation system; or (ii) by other means determined by the Company.
In relation to a Person, that Person and every direct or indirect subsidiary or holding company of such Person or a subsidiary or holding company of any such subsidiary or holding company from time to time.
1.3 LICENSED SOFTWARE
Company's Software, the License to which has been granted to a specific Licensee, in its version current at the moment of the License grant and in extent compliant with the License Certificate and this EULA.
1.4 NFR SOFTWARE
Such version of Company's Software provided by the Company which has the full functionality of the Company’s respective Software, but may be used only for promotional purposes, namely for presentation, or training of use of the respective software.
1.5 TRIAL SOFTWARE
Software provided by Company for trial purposes, which either (i) has the full functionality but might be used only for a limited period of time, or (ii) which might be used for an unlimited period of time but its functionality is restricted. The Trial Software might be used only by end users for purposes of evaluation of the Company's relevant Software.
A non-exclusive right granted by the Company to the Licensee to use the Licensed Software and Related Documentation in the limited scope of its business activities subject to this EULA, and where applicable to the extent and for the period stated in the License Certificate. License is provided in the form of software subscription, i.e. for a definite period of time, which might be extended by further payments of the License Fee.
1.7 OUTSOURCING LICENSE
Such License under which the Licensee is entitled to provide services to third parties through the use of the Licensed Software.
Any natural person, sole proprietorship, corporation, joint stock company, business trust, firm, joint venture, partnership, unincorporated organisation, association, enterprise, limited liability company, limited liability partnership, public benefit corporation, trust or other legal entity or organisation, or any government (whether federal, state, provincial, county, city, municipal or otherwise, including any instrumentality, division, agency, body, political subdivision or department thereof).
1.9 LICENSE CERTIFICATE
A certificate issued by the Company for the particular Licensee in order to grant such Licensee a License. The License Certificate, in particular, contains (i) the date of the License grant, (ii) the individual modules and programs or the quantity thereof for which the usage right is granted (e.g. number of servers, clusters, terminals and connected devices) and other license parameters, if applicable, (iii) time period for which the Licensee is allowed to use the granted License, as well as (iv) reference to the current version of EULA stating the conditions under which the License is granted to the Licensee. The Company reserves the right to stipulate and/or update from time to time the manner of issuance and/or distribution of the License Certificates with respect to available distribution channels, License activation and Licensee authentification methods as available from time to time. Specifically, the License Cerificates may be issued (depending on agreement between Licensee/Partner and the Company) as a hardcopy document or generated by Company's License authentification system based on activation of a License through electronic means.
1.10 AUTHORIZED PARTNER OF THE COMPANY
A company authorized by the Company to distribute, implement and maintain the Company's Software.
1.11 LICENSE FEE
Fee that Licensee shall pay to the Company directly or indirectly (through the Authorized Partner) for the License. License Fee may be included in other forms of payment (eg., in a single subscription payment) alongside with the price for other portions of provided products and/or services. License Fee shall be paid in an amount set out in [ ? ] unless a different amount of the License Fee has been agreed upon between the Licensee and the Company. Certain Software might be provided free of charge by the Company.
1.12 RELATED DOCUMENTATION
With respect to the Licensed Software, all materials, documentation, specifications, technical manuals, user manuals, diagrams, file descriptions and other written information (regardless of the form of such documentation, hardcopy or electronic) that describe the functionality and use of such Licensed Software and that are publicly available or are otherwise customarily provided to Customers for use with the relevant Licensed Software.
1.13 SOFTWARE SUPPORT AND MANAGEMENT SERVICES
Optional services to be provided to the Licensee by the Company or its Authorized Partners from time to time, based on a separate agreement.
2. USE OF SOFTWARE
2.1 SUBJECT OF THE LICENSE
Upon the acceptance of this EULA by the Licensee, the Licensee shall be granted the License under the terms and conditions stated herein.
2.2 RIGHT TO USE THE LICENSED SOFTWARE
The Company represents that it is authorized to grant the License to the Licensed Software. Both contracting parties acknowledge that the Licensee does not, and shall not, obtain the ownership right hereunder to the Licensed Software and that the Licensee shall only have the rights to the Licensed Software that are specified in the currently valid EULA of the Company, as published on the Company website from time to time.
Where software products of third parties which may be governed by their own license terms (such as program libraries, parts of software tools, etc.) constitute a part of the the Company’s Software, the Company shall provide the Licensee with at least a simple non-exclusive and non-transferable right to use such software packages to operate the Licensed Software under the conditions and in the extent as specified in the Third Party Software Terms and Conditions document which forms an integral part of the EULA and is accessible via: https://www.btapac.konicaminolta.com/eula/dispatcher-paragon/ // third-party-software-terms-and-conditions.
2.3 LIMITED VALIDITY OF THE LICENSE, REVOCATION AND DISABLING CODE
Until the Company receives the full License Fee on behalf of the Licensee for the License, the Licensee has only a temporary right to use the Licensed Software that is conditional upon the due and timely receipt of the License Fee payment (if any is due for any given Software), and the Company may, at its sole discretion, ensure the temporary and conditional nature of the operation of the Licensed Software, by enforcing appropriate technical measures including the activation of a disabling access code (as stipulated below) within the Licensed Software or, in case of SaaS provision, by limiting or disabling access to the online service operated using the Software.
The Company is also entitled to terminate the License with immediate effect in the event that the License Fee for the use of the Licensed Software (if any is due) is not paid for any reason whatsoever to the bank account of the Company within the due period and in the full amount. In such case, the Licensee shall (i) return any Related Documentation of the Licensed Software as well as any media containing installation files; (ii) represent in writing and upon Company’s request provide proof of the destruction of any backup installations or installation files for the Licensed Software; (iii) not use the Licensed Software in any way; and (iv) enable the representatives of the Company to audit the fulfilment of these obligations.
The Licensed Software may contain computer code capable of automatically disabling proper operation or functioning of the Licensed Software or its parts. Such disabling code may be activated if: (i) Company is not paid the full amount of the License fee (if any is due); (ii) Company is denied reasonable access to the Licensed Software to periodically reset such code (where applicable); (iii) Licensee has defaulted under this EULA; or (iv) the License is terminated or expires.
2.4 NON-TRANSFERABILITY OF THE LICENSE
Unless expressly stated otherwise in this EULA, the License to the Licensed Software shall be granted to the Licensee solely for its internal business use. Without a Company´s prior express consent, the Licensee may not, either for or without consideration, return service, or payment, in any way further assign the rights and duties arising from the granted License, or lend, lease, sub-license, or in any other manner transfer the Licensed Software, or use the same as collateral or as security with respect to the Licensee's or any other person's obligations.
2.5 CHANGES TO THE LICENSE
The Licensee may not use the Company's Software in a scope exceeding the License granted to it (e.g. by involving a higher number of users, terminals, or servers etc.), or use the License in a manner other than as determined hereunder (e.g. as a terminal License for servers etc.), without the prior written (or electronically confirmed for electronic License activation procedures) consent of the Company (thereby exceeding the scope of the License Certificate) and without paying additional License Fees based on the Company's valid price list. Should the Licensee use any of the Company’s Software in a manner or in a scope other than that permitted under this EULA, without the prior written consent of the Company, the Licensee shall pay the Company a contractual penalty amounting to twice the License Fee for Company's Software License which the Licensee would have needed to acquire to use the Company's Software to the extent and for the purpose that it in fact uses the Company's Software. Payment of the stated contractual penalty shall not affect the Company's right to terminate the validity of any License granted to the Licensee without entitling the Licensee to receive any settlement or reimbursement of any previously paid License Fees.
2.6 COPYING THE LICENSED SOFTWARE
The Licensee is not authorized to make any backup copies of the Licensed Software, unless agreed otherwise by the Company based on justified request by the Licensee. The Licensee may not use the backup copy of the Licensed Software within the scope of its regular activities, or for training or demonstration purposes. The Licensee agrees to mark the backup copy with a statement regarding the Company's intellectual property rights and the fact that this is strictly a backup copy, and with identification labels containing the details of the period for which the License is valid. With the exception of the backup copy, the Licensee may not make copies of the Licensed Software for any purpose.
2.7 ALTERING THE LICENSED SOFTWARE
The Licensee may not conduct reverse engineering, decompile, or disassemble the Licensed Software or any other software of the Company, and it may not reconstitute the source code of the Licensed Software or any other software of the Company, and where such a restriction is not permitted under governing law, it is entitled to do so only to the minimum extent and for the purpose as required by the governing law.
2.8 INFRINGEMENT OF RIGHTS RELATED TO THE LICENSED SOFTWARE
The Licensee undertakes to promptly inform the Company of any instance of which it becomes aware regarding the infringement of the Company's rights in relation to the Company's Software, and in particular, the Licensed Software, and to provide the Company with adequate assistance in establishing the Company's claim regarding the infringement of the rights to the Company's Software.
The Company warrants that the Licensed Software will for 90 days from its installation operate in accordance with the specifications stated in the Related Documentation, provided that i) the software’s operation does not conflict with any other applications operated by the Licensee or in the Licensee’s IT environment, and ii) it is used according to the Related Documentation, and iii) is duly installed by a person trained for this purpose (i.e. by a technician of the Company or of an Authorized Partner of the Company), iv) is duly used in accordance with the specification and purpose of the Licensed Software.
Since the Licensed Software is an up-to-date developed product of the computer technology of its type, and it is currently not possible to test and monitor all potential uses of this software, the Licensee hereby acknowledges that because of the variability of elements in the environment in which the Licensed Software is used, and the continuous development of technical equipment through which the Licensed Software is operated and with which it coexists, the Company cannot warrant that the Licensed Software is unconditionally error-free. Nevertheless, subject to the relevant software support services being agreed for the relevant License (either automatically or optionally activated) the Company undertakes to exercise best efforts to repair any detected errors, anomalies, or repeated errors that are reported to the Company by the Licensee, and to remedy the same through, at its sole discretion and according to the severity of the error, a “hotfix” (one-off repair) or general repair (cumulative updates or maintenance updates or new version), as provided to all eligible users of the relevant version of the Licensed Software. The Company hereby also reserves the right to resolve the warranty claim by granting a License to a later version of the Licensed Software with relevant functionality. For the period of the provided warranty, support for the relevant version of the Licensed Software may also be made available via the Authorized Partners of the Company.
The Company hereby reserves the right to release such repairs from time to time and to change the Licensee’s online environment for the purpose of upgrading the Software (including major version upgrades), or resolving defects, anomalies, or the limited functionality of any of the Software.
The Licensee shall also not retain any rights arising from the warranty if the Licensee does not provide the Authorized Partner of the Company or the Company's representative with the appropriate assistance required to determine the causes and the effects of the claimed defect, as well as appropriate assistance required for its remedy.
The Licensee shall lodge its warranty claim (i.e. claim for the resolution of a defect in the Licensed Software) through the Authorized Partner of the Company which delivered or, as the case may be, which implemented the Licensed Software.
The warranty hereunder shall not apply to Software that is being provided free of charge.
2.10 OBLIGATIONS ARISING FROM THE OPERATION OF THE LICENSED SOFTWARE
The Licensed Software shall be operated and used only for the Licensee's activities, and under the Licensee's supervision and at its liability. The Licensee shall be solely responsible for (a) assessing and evaluating the effectiveness of the Licensed Software for its requirements; (b) ascertaining that the Licensed Software is appropriately used with respect to its personnel and computer resources, (c) ensuring that, specifically, all computer programs and hardware used in conjunction with the Licensed Software are free from any defects that adversely affect the functionality and operation of the Licensed Software, (d) establishing adequate operating supervision and procedures within the organization of the Licensee, and (e) for preparing or implementing troubleshooting plans including replacement and safeguarding measures (covering regular and adequate data backups, security of data traffic, data protection and the redundancy of critical systems) f) operating the software in compliance with the law governing the handling of personal and/or sensitive data.
To the extent permissible by applicable laws, the Company shall 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 on the side of the Licensee or other parties to which the Licensee provides its services as a result of the use of the Licensed Software in accordance with the content of the respective License, or arising from the use of the Licensed Software. This shall also apply in cases where the Company has been notified in advance of the possibility of such damage arising. In no case shall the Company's liability towards the Licensee or any third parties arising from the use of the Company's Software, or any amount of damages, exceed the License fee paid by the Licensee for use of the Licensed Software, and this liability shall cover all of the Licensee's claims for damages against the Company arising from the granting of the License to the Licensed Software and its use by the Licensee. The Company shall also not be liable for any damage caused by (i) the activities of third parties, or by the services which they provide, (ii) the use of other software, or (iii) the neglected maintenance of the Licensed Software (including but not limited to, non-installation of available repairs), including any and all damage caused by other delivered software or services provided by Authorized Partners of the Company.
2.12 COMMENCEMENT AND TERMINATION OF THE LICENSE
The License shall be effective from the date the Licensee agrees to the terms of EULA of the Company, e.g. by accepting the click-wrap license. The License terminates/expires at the end of the time period for which it was granted. The Company may terminate the License, if the Licensee is in breach of this EULA. Irrespective of the manner of termination of the License, the provisions of Subarticles 2.7, 2.8 and 2.11 shall survive its termination or expiration.
3. NFR SOFTWARE
3.1 LICENSE FEE
The License to use NFR Software is granted free of charge, therefore the Licensee is not obliged to pay to the Company any License Fee for the License to use NFR Software.
3.2 NO WARRANTIES AND NO SOFTWARE SUPPORT
With regard to the NFR Software the Company provides no warranties or representations regarding the operation and functionality of the NFR Software. Regarding the NFR Software, the Company provides no Software Support.
The Licensee may only use the NFR Software in the version as indicated therein, however, during the validity of the License the Licensee is entitled to receive updates.
3.3 TERMINATION OF LICENSE
The Company is entitled to at its sole discretion terminate the License to use NFR Software with immediate effect and without any remedy to the Licensee.
4. USE OF TRIAL SOFTWARE
The Licensee shall:
- use any and all Trial Software exclusively to evaluate the features and functionality of the relevant Software, and
- do not use Trial Licenses to perform stress testing, performance testing, or otherwise impact or degrade the performance of any Software(s) or its environment.
Customer acknowledges that upon expiration of the Trial License, unless converted to a full license, Customer’s access to the relevant Software(s) will be terminated and no Customer content will be retained.
Customer's use of the Software(s) on the basis of the Trial License is at Customer’s risk. Unless expressly agreed otherwise, on the basis of the Trial License the Company:
(i) makes the Software available “AS IS”;
(ii) makes no representations or warranties of any kind with respect to the Software;
(iii) commits to no level of service for purposes of the use of the Software by the Customer; and
(iv) shall not be held liable for any losses incurred by the Customer in connection with the use of the Software.
Certain features or functionality of the Software may not be available in a Trial License. Providing any Trial License, or any feature or functionality within Software used based on a Trial License, does not constitute Company's commitment to offer it or the Trial License on a generally available basis.
The Trial License is provided:
(i) free of charge;
(ii) for a period of time of 30 days; and
(iii) for up to 25 devices per one Trial License.
The Company reserves the right to modify, suspend or terminate the access to the Software and the Trial License without any liability.
The Company will select the data center region(s) available to Customer for selection for provision of the Software under the Trial License at its discretion, as well as the relevant infrastructure blueprint and scope of features.
Each Customer is entitled to the maximum of one Trial License, at Company's discretion.
The Company will carry out standard backup procedures. Customer acknowledges that the Company shall not be liable if Customer's data in the Software used under a Trial License is lost.
At the end of the Trial License period, access to the Customer’s tenant instance will be suspended. Ten business days thereafter, the Customer's tenant instance and any backup thereof including any Customer data contained therein can be deleted and no longer be recoverable.
5. OUTSOURCING LICENSE
5.1 LICENSE CERTIFICATE
In addition to the information listed in Subarticle 1.9 above, the License Certificate shall contain details of a Person(s) to whom services may be provided by the Licensee through the use of the Licensed Software.
5.2 EXTENT OF THE LICENSE
If the Licensee is granted the Outsourcing License, the Licensee is entitled to provide services through the use of the Licensed Software to third parties, but only to such third parties which are listed in the License Certificate.
5.3 LIABILITY OF THE LICENSEE
In case of the Licensee being granted the Outsourcing License, it retains full liability for all actions as stipulated in Subarticle 2.10 above towards Person(s) to whom services shall be provided through the use of the Licensed Software.
6. RIGHTS FOR EXISTING LICENSEE AND CHANGES OF THE EULA
The Licensee who acquired its License(s) from the Company before the effective date of this version of the EULA:
(i) may use the Licensed Software subject to licensing terms valid at the moment of issuance of the relevant License; but
(ii) has a right to opt for and accept this version by informing the Company in writing about its intention and its will to accept this version of EULA as binding (directly or through Authorized Partners of the Company and always with reference to the current version of this document).
The Licensee may use the Licensed Software under the licensing terms (EULA terms) valid at the time of issuance of the License Certificate until
(i) for a Subscription license: expiration of the period of the License as specified in the License Certificate or
(ii) for a License purchased for a specified or indefinite period: Licensee acquires an upgrade of the Licensed Software. Once a subscription is extended or Licensed Software is upgraded, the Licensee accepts the EULA (or generally licensing terms) valid at the moment of such renewal, extension or upgrade.
7. GOVERNING LAW AND JURISDICTION, DISPUTE RESOLUTION
This EULA shall be governed, construed and enforced by the laws of the Czech Republic.
All disputes arising from, and in relation to this EULA shall be resolved with final effect by the Arbitration Court attached to the Czech Chamber of Commerce and Agricultural Chamber of the Czech Republic, according to its Rules, by three arbitrators in accordance with the Rules of that Arbitration Court. The place of the proceedings shall be Prague and the language of the proceedings shall be English. This EULA shall not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
Terms and Conditions for use of Dispatcher Paragon Cloud
This Terms and conditions for use of Dispatcher Paragon Cloud governs the term and conditions for the use of Dispatcher Paragon Cloud provided by Provider to Customer, which constitutes a binding agreement between Provider and Customer. Customer accepts and agrees to be bound by these Terms and Conditions by issuing a valid purchase order that references these Terms and Conditions or by using the Dispatcher Paragon Cloud as of the date of the purchase order or the date of usage (the "Effective Date"). The purchase order may refer to certain supplemental terms and condition (“Supplemental Terms”) for use of Dispatcher Paragon Cloud, and in case of conflict between any provision of the Supplemental Terms and any provision of these Terms and Condition, the provisions of these Terms and Condition shall prevail.
1. DEFINED TERMS.
"Agreement": These Terms and Conditions as well as each Product Schedule and Service Term.
"Applicable Law": All existing and future laws, rules, regulations, statutes, treaties, codes, ordinances, permits, certificates, orders and licenses of and interpretations by, any governmental authority, and applicable judgments, decrees, injunctions, writs, orders or like action of any court, administrative, judicial or quasi-judicial tribunal or agency of competent jurisdiction (including those pertaining to currency exchange controls, health, safety or the environment, antitrust, competition, anti-terrorism, anti-money-laundering, anti-bribery, sanctions and data protection/ privacy issues) to the extent that the foregoing are applicable to either or both of the parties hereto and/or their respective properties.
"Applicable Privacy Law": All Applicable Law in force from time to time relating to data protection and privacy or the protection of individuals with regards to the processing of Personal Data, including (but not limited to) (i) the EU GDPR, (ii) the UK GDPR, and (iii) the UK Data Protection Act 2018, (iv) California Consumer Privacy Act of 2018, and Act of Protection of Personal Information in Japan, in each case to which the relevant party is subject.
"Authorised Person": Has the meaning ascribed to it in Section 8(b) hereof.
"Customer": The Person issuing a valid purchase order to Provider for receiving the Solution, together with its successors and permitted assigns.
"Customer Indemnified Party(ies)": Customer and its respective successors and permitted assigns, and all officers, directors, shareholders, employees, agents and representatives of any of the foregoing.
"Data": The data contained within the Provider System that is uploaded by Customer or generated by activity undertaken by Customer on the Provider System, including but not limited to print and scan data and related activity logs. Other types of Data may be specified in a relevant Product Schedule.
"Data Processing Addendum": The Provider data processing addendum with respect to the processing of the Personal Data provided by Customer to Provider separately entered into by the parties on or around the date of this Agreement.
"EU GDPR": The European General Data Protection Regulation No. 2016/679 dated 27 April 2016.
"Information": Has the meaning ascribed to it in Section 8(a) hereof.
"Intellectual Property": Any proprietary patent, copyright, trade secret, trademark, service mark, logo, domain name, moral rights or other enforceable intellectual property rights (including rights in proprietary data bases and privacy rights), each as recognized under Applicable Law.
"Person": Any natural person, sole proprietorship, corporation, joint stock company, business trust, firm, joint venture, partnership, unincorporated organisation, association, enterprise, limited liability company, limited liability partnership, public benefit corporation, trust or other legal entity or organisation, or any government (whether federal, state, provincial, county, city, municipal or otherwise, including any instrumentality, division, agency, body, political subdivision or department thereof).
"Personal Data": Has the meaning ascribed to it in Section 8(d) hereof.
"Product(s)": Provider Software and, where applicable, the complementary hardware, as described in the relevant Product Schedule(s).
"Provider": the company of Konica Minolta Group or its designated distributor who receives a valid purchase order for the Solution from Customer, together with its successors and permitted assigns.
"Provider Indemnified Party(ies)": Provider and its respective successors and permitted assigns, and all officers, directors, shareholders, employees, agents and representatives of any of the foregoing.
"Provider Software": Collectively, the proprietary software of Provider and the software of other Persons used by Provider in connection with the provision of the Solution.
"Provider System": The Provider Software, combined with the services that Provider offers to Customer, which enable Customer to use the Solution, as described in the relevant Product Schedule.
"Product Schedule": Each product schedule attached to this Agreement from time to time governing the services to be provided by Provider to Customer, as executed by Customer and Provider either contemporaneously herewith or at a later time, as well as any exhibit(s) or schedule(s) thereto.
"Services": Those services described on the relevant Product Schedule(s).
"Solution(s)": Product(s), and related hosting, support and professional services, as described in the relevant Product Schedule(s).
"Term": Has the meaning ascribed to it in Section 9(a) hereof.
"UK GDPR": EU GPR in such form as incorporated into the law of England and Wales, Scotland and Northern Ireland by virtue of the European Union (Withdrawal) Act 2018 and any regulations thereunder.
2. PROVIDER IMPLEMENTATION AND OPERATION.
(a) Solution Use Rights. During the Term, Provider agrees to provide the Solution to Customer subject to the terms and conditions set forth in this Agreement and the relevant Product Schedule(s). Provider reserves the right to modify or amend the Solution from time to time; provided that such modifications or amendments do not materially adversely affect the Solution or the obligations of either party under this Agreement. Provider hereby grants to Customer the right to access and use the Provider System as described in the relevant Product Schedule from time to time, as applicable.
(b) License Grant. Subject to any applicable agreements covering specific Data, Customer grants to Provider a royalty free, worldwide, non-exclusive license, to use, reproduce, display and modify (including modifications to formatting that are required for proper display within the Provider System) the Data provided by Customer by using the Solution (i) during the Term, for the purposes of providing the Solution to Customer as contemplated by this Agreement, and (ii) as set forth in Section 2(c) hereof. Customer shall notify Provider in writing within five (5) business days of its knowledge of, and will promptly and thoroughly respond to any notices, claims or proceedings that the Data supplied by Customer contravenes or violates the Digital Millennium Copyright Act, 17 U.S.C. § 101 et seq., or any other Applicable Law, as each of such may be amended from time to time. Subject to the license granted above, title and all Intellectual Property rights to Data shall remain with the Customer providing such Data.
(c) Data and Reports. Notwithstanding the foregoing, Provider shall have the unrestricted right to use any Data provided by anyone to the Provider System (i) for the purposes of providing the Solution set forth in its agreements with Customer, including the sharing of such Data among Customer, and pursuant to any relevant Product Schedules with Customer including new Services, (ii) for operational, administrative, internal reporting and billing purposes related to this Agreement, and (iii) alone or combined with other data, to create and disseminate trend analyses, statistical reports and similar information to facilitate or enhance the operation of the Provider System and providing the Solution or otherwise, provided that such reports shall not disclose individual respective Customer without the prior written consent of the respective Person supplying such Data.
(d) No Monitoring. Provider shall have no obligation to monitor or exert editorial control over any Data or any use of the Solution. If Provider becomes aware that any Data or use of the Solution is or is likely to (i) violate any Applicable Law, (ii) infringe on the Intellectual Property rights of any other Person, and/or (iii) contain obscene, offensive, or unlawful materials, or any combination of the above, Provider shall have the right, but not the obligation, to (a) remove the violative Data and/or (b) suspend or terminate the relevant Person’s right to use the Provider System.
(e) Compliance with Laws. Customer shall comply with all Applicable Law applicable to the conduct of its obligations under this Agreement.
Provider or its respective licensor retains all right, title, and interest in and to the Solution, including all Intellectual Property associated therewith, and all derivative works thereof, and in all media, but specifically excluding Data that at all times shall remain the property of the contributing Person. Other than a royalty-free right to use the Solution and any relevant Provider product or Service subject to an executed Product Schedule during the Term, nothing contained herein shall be construed as the grant of a license or other right by Provider to Customer. Customer agrees that it will not, and will not permit employee of Customer, or other Person to: (a) modify, adapt, alter or translate the Provider System or any Provider product or Service, except as expressly allowed herein; (b) sublicense, lease, rent, loan, distribute, or otherwise transfer the Solution or its part, or any Provider product or Service, including, software, associated user interfaces, and any related technology or services that Provider makes available via the Solution or its part, and all updates and upgrades thereto, if any, to any other Person; or (c) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organisation) of Solution or its part, or any other Provider product or Service. The copyright and all other Intellectual Property Rights in the Solution, and all Provider products and Services are the sole and exclusive property of Provider or its suppliers. All rights not expressly granted to Customer are reserved to Provider.
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5. WARRANTIES, REMEDIES AND COVENANTS.
(a) Customer Representations, Warranties and Covenants. Customer represents, warrants and covenants to Provider, at the Effective Date and as of the effective date of any Product Schedule, that:
(i) Customer is duly organised and validly existing under the laws of the jurisdiction of its organisation;
(ii) Customer, as the case may be, own or have sufficient rights in and to the Data supplied by Customer to grant the rights set forth in this Agreement and to permit Provider to exercise its rights and to perform all of its obligations under this Agreement and any applicable Product Schedule;
(iii) With respect to the Data supplied by Customer, neither Provider's receipt, use or display (over the Internet or otherwise), nor Provider's use or delivery of such Data supplied by Customer, as contemplated by this Agreement and any applicable Product Schedule, will, to the best of Customer's knowledge, violate the Intellectual Property rights of any third Person or any Applicable Law;
(iv) Customer has the requisite power and authority to execute, deliver and perform this Agreement, and the execution by a duly authorised officer, delivery, and performance of this Agreement by Customer has been duly authorised by all necessary corporate action required by Customer, and constitutes a valid and binding obligation of Customer, enforceable against Customer in accordance with its terms, subject as to enforceability to applicable insolvency, reorganisation, insolvency, moratorium or other Applicable Law affecting creditors’ rights generally;
(v) The execution, delivery and performance by Customer of the Agreement, does not violate any provision of Customer's organisational documents or, to the best of Customer's knowledge, any Applicable Law;
(vi) Each Person that purports to make an entry in the Provider System on behalf of Customer has been duly authorised by Customer to do so and each entry by Customer in the Provider System purporting to be by Customer is duly authorised by and is binding on Customer, save where such entry is a result of an unauthorized unlawful access by a Person of the Provider System which could not have been reasonably expected or prevented by Customer.
(b) Provider Representations, Warranties and Covenants. Provider represents, warrants and covenants to Customer, at the Effective Date and as of the effective date of any Product Schedule, that:
(i) Customer's use of the Provider System will not violate the Intellectual Property rights of any Person not a party hereto;
(ii) Provider will provide the Solution in a timely, professional and workmanlike manner, and in compliance with all Applicable Law and industry standards;
(iii) Provider shall maintain industry standard security measures and procedures for the Provider System;
(iv) The Provider System will conform to, and function in accordance with, the specifications set forth in this Agreement, including any exhibits or schedules attached hereto;
(v) The execution, delivery and performance of this Agreement by Provider has been duly authorised by all necessary corporate or other action required by Provider and this Agreement (A) has been duly executed and delivered on behalf of Provider by a duly authorised officer, (B) constitutes the valid and binding obligation of Provider, and (C) is enforceable against Provider in accordance with its terms, subject as to enforceability to applicable insolvency, reorganisation, insolvency, moratorium or other Applicable Law affecting creditors' rights generally;
(vi) Provider is duly organised and validly existing and is in good standing under the laws of Delaware; and
(vii) The execution, delivery and performance by Provider of this Agreement does not violate (A) any provision of Provider’s organisational documents or (B) any material agreement or any court order to which it is a party or by which it is bound.
Customer's sole remedy for breach of the representation and warranty set forth in Section 5(b)(i) above, and Provider's sole obligation with respect to any such breach, is set forth in Section 6(a) hereof.
(c) Disclaimer. Except as expressly set forth in Section 5(b) hereof and in any Product Schedule, no warranties or conditions, whether express, implied or statutory, including the implied warranties of satisfactory quality and fitness for a particular purpose and the ability to achieve any particular result, are made by Provider with respect to the Solution provided by Provider, and such Solution is provided on an "AS-IS, WHERE-IS and AS AVAILABLE" basis. Provider expressly disclaims liability and specifically denies any responsibility for the completeness, accuracy or quality of any information or data obtained through the Provider System or Solution. Subject to Section 5(b)(iii) above, the use of Data or information obtained via the Solution is at Customer's own risk.
(a) Indemnity by Provider. Provider shall indemnify and defend each Customer Indemnified Party and hold each of them harmless from and against any claims, liabilities, damages and costs and expenses (including reasonable attorneys' fees) awarded against or incurred by any Customer Indemnified Party arising out of the intentional tortious acts, fraud or gross negligence of Provider, or a claim that use by Customer of the Provider System in accordance with this Agreement infringes the Intellectual Property rights of any Person not a party hereto. Customer shall promptly notify Provider of the assertion of such claim, and Provider shall have full control of its defence or settlement with the reasonable cooperation of the Customer Indemnified Parties. Notwithstanding the foregoing, Provider shall have no obligation to any Customer Indemnified Party under this Section 6 if an infringement claim results from (i) information supplied by any Person other than Provider, or (ii) misuse of the Solution by Customer. In the event of a claim that use by Customer of the Solution in accordance with this Agreement infringes the Intellectual Property rights of any Person not a party hereto, Provider may, at its option, (1) obtain a license to use such Intellectual Property or other rights as may be necessary to allow Customer to continue use of the Solution in accordance with this Agreement and the Product Schedules, (2) modify the Solution so as not to infringe such Intellectual Property rights, or (3) terminate this Agreement upon ten (10) days' prior written notice to Customer.
(b) Indemnity by Customer. Customer shall indemnify and defend the Provider Indemnified Parties, together with their respective successors and permitted assigns, and all officers, directors, shareholders, employees, agents and representatives of any such Person, and hold each of them harmless from and against any claims, liabilities, damages, costs and expenses (including reasonable attorney's fees) awarded against or incurred by any of the foregoing arising out of:
(i) Any breach by Customer of any of its representations, warranties or covenants under Section 5(a) of this Agreement or any Product Schedule which results in a material loss for any of the aforesaid;
(ii) The intentional tortious acts, fraud or gross negligence of Customer in connection with the performance by Customer, or otherwise related to, this Agreement or any Product Schedule; or
(iii) A claim that the Data provided by Customer infringes the Intellectual Property rights of a Person not a party hereto. With respect to matters for which indemnification is claimed under this Section 6(b)(iii), one or more Provider Indemnified Parties shall promptly notify Customer of the assertion of such claim, and Customer shall have full control of its defence or settlement with the reasonable cooperation of the Provider Indemnified Parties; provided, that Provider and any other affected Provider Indemnified Party shall have the right to consent to any settlement other than any settlement which solely involves monetary damages that Customer has agreed to pay.
7. NO PUNITIVE OR CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY.
(a) Consequential Damages. Except for a breach of Section 8 or misuse by Customer of Provider's Intellectual Property, in no event shall either party be liable to the other party or to any other Person for any indirect loss, including loss of time, money or goodwill, incidental, special, exemplary, consequential or punitive damages of any kind under any legal theory or cause of action, in each case based on either party’s use, inability to use, operate or modify the Solution. For the avoidance of doubt, indirect loss includes loss of use, lost business, lost revenue, lost profits, lost data, and/or lost goodwill even if the party knew or should have known of such damage.
(b) Limitation of Liability. Provider’s total liability for proven direct damages resulting from any cause of action (or a related series of actions) arising out of this Agreement, the Product Schedules and/or the Solution shall be limited to (i) in the case of a breach of any Applicable Privacy Law, the amount of fees received by Provider arising from the affected Product Schedule(s) during the 12 (twelve) month period immediately preceding the date on which the cause(s) of action accrued, or (ii) in any other case, the amount of fees received by Provider arising from the affected Product Schedule(s) during the three (3) month period immediately preceding the date on which the cause(s) of action accrued. Notwithstanding the foregoing, the limitations in this section 7(b) (nor those in similar sections of the Product Schedules) are not applicable to damages resulting from (i) a party’s intentional tortious acts, fraud or gross negligence, (ii) death or personal injury resulting from the negligence of a party, its employees, agents or sub-contractors, or (iii) Customer’s obligation to pay any amounts payable by Customer that are established under any Product Schedule. Each party acknowledges that the limitations of liability in this Section 7 reflect the allocation of risk set forth in this Agreement and that the other party would not enter into this Agreement without these limitations on its liability.
(a) Confidentiality. Each party acknowledges that (i) the Provider System incorporates confidential and proprietary information developed or acquired by Provider, including the Provider Software, and (ii) each party may receive or have access to other proprietary or confidential information disclosed by a disclosing party and reasonably understood by a receiving party to be of a confidential and proprietary nature, including the identifications and passwords for use of the Provider System (collectively, (i) and (ii), the "Information"). The receiving party shall use the disclosing party's Information solely to perform such receiving party's obligations and exercise its rights under or in relation to this Agreement, any applicable Product Schedule, or any associated agreements or documents. The receiving party shall take precautions necessary to safeguard the confidentiality of the disclosing party's Information, including (i) those taken by the receiving party to protect its own confidential information of a similar nature (but in no case shall the precautions taken be less than those reasonable in light of the nature of the Information disclosed) and (ii) those that the disclosing party may reasonably request from time to time. Upon demand by either party upon completion by a party of its obligations hereunder, the other party will destroy Information disclosed to it hereunder. Notwithstanding the foregoing, no provision of this Section 8 shall require the destruction by the receiving party of any files: (i) retained for audit or record retention purposes; or (ii) computer records or electronic files containing Information that have been created pursuant to automatic archiving and back up procedures, provided that such Information so retained is kept confidential and used solely in accordance with the provisions set out in this Section 8.
(b) Unauthorised Use or Disclosure. Each party may only disclose Information to its affiliates, and the directors, officers, and employees of such party and its affiliates (collectively, "Authorised Persons"): (i) who have a bona fide need to know for the purposes of this Agreement, (ii) who have executed a written agreement (or are otherwise bound by written agreement or equivalent professional ethical obligations) restricting use and disclosure of such Information to no less an extent as that required of the parties under this Agreement, and (iii) so long as the receiving party remains liable for any unauthorised use or disclosure of the disclosing party’s Information by any such Authorised Person. Except as set forth herein, the parties agree not to disclose to any third Person, any Information which may come into its possession or knowledge in connection with this Agreement or the performance thereof, including, information relating to the parties’ businesses. The parties acknowledge that any unauthorised use or disclosure of any Information by the receiving party may cause irreparable damage to the disclosing party or disclosing Person, the remedies at law for such a breach may be inadequate, and that the disclosing party or disclosing Person, as applicable, shall be entitled to seek injunctive and other equitable or legal relief to prevent or compensate for such unauthorised use or disclosure, in addition to any other remedies available. This Section 8 shall survive the expiration or termination of this Agreement for a period of two (2) years, except that the obligations of this Section 8 will remain in effect with respect to Information that qualifies as a trade secret for as long as such Information constitutes a trade secret under Applicable Law.
(c) Limitation. The receiving party shall have no obligation to safeguard the confidentiality of a disclosing party’s Information if (i) such Information is known through lawful means by the receiving party prior to receipt from the disclosing party as evidenced by the written records of the receiving party, (ii) such Information is lawfully obtained by the receiving party from a Person other than the disclosing party without restriction, (iii) such Information becomes available to the public through no act or omission of the receiving party, (iv) such Information is independently developed by the receiving party without access to, reference to, or knowledge of the Information as evidenced by the written records of the receiving party, (v) the receiving party is compelled to disclose such Information pursuant to legal process, provided the receiving party promptly notifies the disclosing party of the service of such legal process to the extent permitted by Applicable Law and cooperates with the disclosing party in seeking confidential treatment thereof, or (vi) such Information is requested or required to be disclosed by any state, federal or foreign authority or examiner regulating financial institutions or banking (but only for purposes of the disclosure to the applicable authority or examiner); provided, however, that after disclosure under 8(c)(v) or (vi) above, the Information at issue shall continue to be protected under the terms of Section 8 for all other purposes.
9. TERM AND TERMINATION.
(a) Term. Subject to earlier termination as described below or elsewhere in this Agreement, this Agreement shall commence on the Effective Date and shall remain in effect for period set forth in the applicable purchase order (the "Term").r.
(b) Termination. In addition to the rights of Provider to restrict Customer's access to the Provider System or terminate this Agreement as set forth elsewhere in this Agreement, either party may terminate this Agreement (and/or any Product Schedule) upon notice to the other party if such other party breaches a material provision of this Agreement and fails to cure such breach within fifteen (15) days following written notice from the non-breaching party to the breaching party, specifying such breach and which agreement(s) are subject to termination. In addition, this Agreement and any Product Schedule(s) shall terminate immediately and automatically upon (i) the occurrence of the applicable insolvency with respect to either party, (ii) receipt of written notice from Provider for the breach by Customer of the use restrictions set forth in Section 3, or (iii) receipt of written notice from the non-breaching party for the intentional breach by either party of Section 8 hereof.
(c) Termination for Convenience. Either party may terminate this Agreement upon sixty (60) days advance written notice to the other party.
(d) Effect of Termination. All rights, duties and obligations of the parties shall terminate upon the expiration or termination of this Agreement, unless otherwise specified in a Product Schedule or in Section 9(e) below.
(e) Survival of Terms. The rights and responsibilities of the parties hereto under Sections 1, 2(c), 2(e), 3, 4, 5, 6, 7, 8, 9(d), 9(e), 11, 12, 13 and 14 will survive expiration or earlier termination of this Agreement along with any other provisions which by their nature extend beyond any such expiration or termination. The termination of this Agreement howsoever caused shall be without prejudice to the rights, duties and liabilities of either party accrued prior to termination.
10. FORCE MAJEURE.
Any delay in or failure of performance by either party under this Agreement (other than Customer’s failure to make any payment when due) shall not be considered a breach of this Agreement if and to the extent caused by events beyond the reasonable control and without the fault of the party affected, including but not limited to acts of God, embargoes, governmental restrictions, strikes, riots, insurrection, wars, or other military action, acts of terrorism, civil disorders, rebellion, fires, floods, widespread failures of the Internet or telecommunications systems, vandalism, or sabotage. Market conditions and/or fluctuations (including a downturn of either party’s business) shall not be deemed force majeure events. The party whose performance is affected by such events shall promptly notify the other party, giving details of the force majeure circumstances, and the non-payment obligations of the party giving such notice shall be suspended to the extent caused by the force majeure so long as the force majeure continues, and the time for performance of the affected obligation hereunder shall be extended by the time of the delay caused by the force majeure event.
11. (Intentionally Blank)
12. GOVERNING LAW; SUBMISSION TO JURISDICTION; SERVICE OF PROCESS; CHOICE OF FORUM.
This Agreement shall be governed by and construed in accordance with the laws of England and Wales. Each party hereby consents to the exclusive jurisdiction of the courts of England and Wales, in any action, proceeding or dispute relating in any way to this Agreement or any applicable Product Schedule, and agrees that any such proceeding shall be brought by it solely in any such court (except in the case that it is seeking injunctive relief for breach of Section 8, the infringement of its Intellectual Property rights, or collection of amounts owed). Each party irrevocably submits and consents to the exercise of subject matter jurisdiction and personal jurisdiction over such party by the courts located in England and Wales, and irrevocably waives all claims, objections and defences that it may have regarding such court’s subject matter or personal jurisdiction, venue or inconvenient forum. Service of process in relation to any legal action or proceedings arising out of or in connection with this Agreement shall be carried out by overnight courier or hand delivery. For the avoidance of doubt, service of process by email is not permitted.
13. RIGHT OF THIRD PARTIES.
Subject to Section 14(c) and except as may be set forth in a Product Schedule, it is agreed for the purposes of the Contracts (Rights of Third Parties) Act 1999 that this Agreement is not intended to, and does not, give to any person who is not a party to this Agreement any rights to enforce any provisions contained in this Agreement except for any person to whom the benefit of this Agreement is assigned or transferred in accordance with Section 14(c) (Assignment). Except as may be set forth in a Product Schedule, the consent of any person who is not a party to this Agreement is not required to terminate or vary this Agreement at any time.
(a) Entire Understanding. This Agreement, together with any relevant Schedules, contains the entire understanding of the parties hereto and supersedes all prior agreements and understandings, if any, relating to the subject matter hereof. Any promises, representations, warranties or guarantees not herein contained and hereinafter made shall have no force and effect unless in a writing signed by the party making the same. No modification hereof shall be effected by either party's use of an order acknowledgment or other form containing additional or different conditions. Each of the parties hereto acknowledges that it has been advised by counsel in connection with the execution of this Agreement and that it is not relying upon oral representations or statements inconsistent with the terms and provisions of this Agreement. The Solution is provided only to Customer. Resale to or use of the Solution by any Person other than Customer or any other Person, is prohibited. Each party acknowledges and confirms to the other party that it does not enter into this Agreement in reliance on any representation or warranty or other undertaking not fully reflected in the terms of this Agreement and its only remedy is for breach of contract provided that this will not exclude any liability which either party would otherwise have to the other in respect of any statements made fraudulently prior to the date of this Agreement.
(b) Waivers and Modifications. Neither this Agreement nor any portion or provisions hereof may be changed, modified, amended, waived, supplemented, discharged, cancelled or terminated orally or by any course of dealing, or in any manner other than by an agreement in writing, signed by the parties or, in the case of any waiver of any provision, by the party waiving the benefit of such provision. No failure on the part of either party to exercise, and no delay in exercising, any right or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy hereunder preclude any other right or remedy or further exercise thereof or the exercise of any other right or remedy granted herein.
(c) Assignment. This Agreement shall be binding on and inure to the benefit of Customer and Provider and their respective successors and permitted assigns. Neither party may assign this Agreement or its rights hereunder, or delegate performance of its obligations hereunder, to another Person without the prior written consent of the other party and any assignment not made in compliance with this Section 14 (c) shall be null and void; provided, however, that Customer and Provider may freely assign this Agreement or its obligations or rights hereunder to a Person acquiring all or substantially all of its assets or equity interests. Customer acknowledges that Provider reserves the right to use subcontractors or other Persons not party hereto to fulfill its obligations hereunder; provided, that Provider shall remain primarily liable for the performance of all of its obligations hereunder by such subcontractors or other Persons.
(d) Severability. Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under Applicable Law, but if any provision of this Agreement shall be prohibited by or invalid under Applicable Law, such provision shall be ineffective to the extent of such prohibition or invalidity without invalidating the remaining provisions of this Agreement. The remaining provisions shall be construed in such a manner as to carry out the full intention of the parties hereto.
(e) No Agency. Except as expressly provided in any Product Schedule to this Agreement, the performance by each party of its duties and obligations under this Agreement shall be that of an independent contractor and there shall not be any agency, fiduciary relationship, joint venture or partnership between the parties by reason of this Agreement.
(f) Construction. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one party than against another, because the parties participated equally in preparing this Agreement. All exhibits and schedules referenced in this Agreement are incorporated herein by this reference. In the event of any conflict between the schedules attached to this Agreement and the other provisions of this Agreement, the terms of this Agreement shall control; provided, however, in the event of any conflict between a Product Schedule attached to this Agreement and the other provisions of this Agreement, the terms of the Product Schedule shall control. Headings of particular sections are inserted only for convenience and are not to be considered a part of this Agreement or be used to define, limit or construe the scope of any term or provision of this Agreement. All terms defined in the singular shall have the same meanings when used in the plural, and vice versa. All pronouns used shall be deemed to cover all genders. Unless the context otherwise specifically requires, all references to sections of this Agreement shall refer to all subsections thereof.
(g) Anti-Bribery Laws. The parties, their officers, directors, employees, agents and affiliates, and anyone for whose acts or defaults they may be vicariously liable or anyone acting on behalf of any of them, shall not make any payments in violation of any applicable anti-bribery Law in connection with or in any way relating to or affecting this Agreement. The parties acknowledge that international anti-corruption Laws, including the U.S. Foreign Corrupt Practices Act ("FCPA") and the U.K. Bribery Act 2010 ("UKBA"), prohibit any direct or indirect payment/receipt of money or anything of value to/from any person (including but not limited to any government office, international organization, non-exempt political party, party official or candidate for political office) for the purpose of obtaining, retaining or directing business, securing any improper advantage in the conduct of business or inducing the improper performance of any public or business-related function. The parties represent and warrant that in the performance of its obligations under this Agreement or otherwise in connection with this Agreement it has not made and agrees that it will not make any such prohibited payment. Neither party shall be obligated under this Agreement to take any action or omit to take any action that it believes in good faith, would cause it to be in violation of any Applicable Laws.
DISPATCHER PARAGON CLOUD PRODUCT SCHEDULE
1. DEFINED TERMS.
"EULA": Provider's End User License Agreement publicly available on the Provider's website at https://sec.kmbs.us/version2/dispatchersuite/eula-dispatcherparagon.html , https://sec.kmbs.us/version2/dispatchersuite/eula-dispatcherparagon.htmlas amended from time to time.
"MFP(s)": Multi-functional printer(s).
"Product": Has the meaning ascribed to it in Section 2 below.
"Product Documentation": Documentation, specifications, technical manuals, user manuals and other written information (regardless of the form of such documentation, if in hardcopy or electronic one) that describe the functionality and use of a product and that is clearly marked as “Product Documentation”.
"Product List(s)": Documents defining the scope of functionality, working conditions and other parameters of Products. Applicability of specific terms and conditions contained in the Product Lists is always subject to conditions and limitations set forth herein.
"Professional Services": Means services to be provided by the Provider such as analysis, customization/modification/enhancement, installation and implementation, migration, change management services for the Product(s) and trainings based on needs and for purposes of the Customer, as in more detail described in the applicable Product Lists attached to the Agreement or as stipulated in the respective SOW.
"Restricted Party": Means a subject (a) that is listed on any Sanctions List (whether designated by name or by reason of being included in a class of person); (b) that is domiciled in, registered as located or having its main place of business in, or is incorporated under the laws of, a country which is subject to a Sanctions Law; (c) that is directly or indirectly owned or controlled by a person referred to in (a) and/or (b) above; or (d) with which the Provider is prohibited from dealing or otherwise engaging in a transaction with by any Sanctions Law.
"Dispatcher Paragon Cloud": Provider´s cloud software, which expands and/or enhances the function of MFPs as documented in the Product Documentation.
"Sanctions Authority": Means the U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC), the U.S. Department of State, the United Nations Security Council, the European Union and any of its member states, Her Majesty's Treasury, the United Kingdom, the United States of America, and any authority acting on behalf of any of them in connection with any Sanctions Law.
"Sanctions Law": Any economic or financial sanctions law and/or regulation, trade embargo, prohibition, restrictive measure, decision, executive orders or notices from any regulator implemented, adapted, imposed, administered, enacted and/or enforced by any Sanctions Authority.
"Sanctions List": Any list of Persons published in connection with any Sanctions Law by or on behalf of any Sanctions Authority each as amended, supplemented or substituted from time to time.
"Service": Hosting, pre-sale and post-sale support, installation/implementation, warranty and post-warranty servicing, maintenance and technical (consulting) support provided by the Provider to the Customer, as detailed in the respective Product Lists.
"SOW": Statement of Work executed in connection with this Product Schedule under which the Provider shall, upon the Customer's request, provide to Customer Service. SOW document shall also (a) define the Products and software to be supplied with any Service specifications' delivery conditions and acceptance criteria, any interim milestones and payments due, (b) shall incorporate and be subject solely to the terms hereof as modified by the applicable SOW from time to time, and (c) shall define software architecture, such as server sizing information, and any and all other information relevant to the implementation and / or servicing such installation.
As of the Effective Date, Provider and Customer agree to these terms applicable to the Provider's Dispatcher Paragon Cloud software, related hosting, support and professional services (the "Product"). This Product Schedule shall only apply to the Product. Provider and Customer agree that this Product Schedule is in addition to and separate from, and does not impact, any other product schedule entered into by and between Customer and Provider pertaining to any other Provider product.
3. HOSTING, SOFTWARE, MAINTENANCE AND SUPPORT.
(a) Hosting. Unless agreed otherwise, for the duration hereof, Provider shall, subject to the limitations set out herein, provide, or shall ensure that the a third Person of its choice will provide, to the Customer access to the Solution online, in order to enable Customer to access and use the Solution.
(b) License. Subject to the terms and conditions of this Product Schedule, Provider grants to the Customer a non-exclusive, non-transferable, limited license to access and use the Products. Unless expressly agreed otherwise, the Customer is not entitled to change any of the Products, or documentation, Product Lists or other items that bear a trademark and/or trade name owned by the Provider, and may not modify or remove the trademarks and trade names therefrom.
(c) No Implied Licence. Each party acknowledges that the rights and licenses granted in this Product Schedule are limited to the scope expressly granted. Accordingly, except for the rights expressly granted under this Product Schedule, no right, title, or interest of any nature whatsoever is granted whether by implication, estoppel, reliance, or otherwise, by either party to the other party. All rights with respect to any software, know-how, patent or other intellectual property right rights that are not specifically granted herein are reserved to the owner thereof. Specifically, title to, ownership of, and all rights in the intellectual property, including but not limited to patents, copyrights, trademarks, and trade secrets in the Products and documentation thereto, as well as resulting from services provided, any derivative work thereof, and any goodwill accruing from the use thereof, belong exclusively to and remain with the Provider or its licensor. Any exception to this rule (e.g. in connection with the provision of Service) must be expressly agreed between the parties in writing (e.g. in the SOW).
(d) EULA. Customer shall comply with applicable end user licence agreement for Products. As per the date hereof, the end user licence agreement applicable to any intellectual property embodied in the Products is the EULA.
(e) Product copyright protection. Customer shall always proceed in a manner that highlights the fact that Provider or its lisensor is the copyright owner, and the exclusive provider of the related license, to the Product.
(f) Information Sharing. Customer is obliged to, without undue delay, inform Provider on any case of use of Dispatcher Paragon Cloud contrary to the EULA, its misuse or distribution without authorization, and of any other cases of damage to or impending breach of the Provider’s justified interests, he/she becomes aware of.
(g) Support. Based on individual orders, the Provider will provide to the Customer pre-sale and post-sale support, installation/ implementation, warranty and post-warranty servicing, maintenance and technical (consulting) support, including SLAs, and provide consultation on the basis of the at-the-time valid price list. The Provider is entitled to withhold a service if a service fee has not been paid for in accordance with the valid price list.
(h) Service Terms. Additional conditions for hosting, technical support, maintenance and SLA provided by the Provider are described in the Service Terms and in the applicable Product Lists. For avoidance of doubt, the individual Product Lists, in particular Product Lists for SLA services are only binding in case such SLA services was duly ordered.
4. PROFESSIONAL SERVICES.
The Provider will provide to the Customer Professional Services based on separate orders/SOW.
5. CUSTOMER'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
In addition to the representations and warranties set forth in Sections 5 and 14 of the Agreement, which are reaffirmed as of the Schedule Date, Customer hereby represents, warrants and covenants to Provider that:
(a) Customer has the requisite power and authority to accept and perform this Product Schedule, and the execution, delivery, and performance of this Product Schedule by Customer has been duly authorised by all necessary corporate or other action required by Customer;
(b) This Product Schedule has been duly executed and delivered on behalf of Customer by a duly authorised officer, and constitutes the valid and binding obligation of Customer, enforceable against Customer in accordance with its terms, subject as to enforceability to applicable insolvency, reorganization, insolvency, moratorium or other Applicable Law affecting creditors’ rights generally;
(c) The execution, delivery and performance by Customer of this Product Schedule does not violate (i) any provision of Customer's organizational documents or (ii) any credit agreement, indenture, guaranty, security agreement or similar financing agreement or any court order to which it is a party or by which it is bound;
(d) All information at any time furnished by Customer to Provider relative to the Product purchase and user is true and correct in all material respects and does not omit to state any material fact that, if omitted, could make such information misleading in any material respect in light of the circumstances under which such information was provided;
(e) To the best of its knowledge and belief after having made due and careful enquiries, Customer, each member of the Customer’s corporate group and each of their respective directors, officers, employees, agents or representatives is and has been in compliance with all applicable Sanctions Law;
(f) To the best of its knowledge and belief after having made due and careful enquiries, neither Customer, member of Customer’s corporate group nor any of their respective directors, officers, employees, agents or representatives: (i) is a Restricted Party, or is involved in any transaction through which it is likely to become a Restricted Party; or (ii) is subject to or involved in any inquiry, claim, action, suit, proceeding or investigation against it with respect to any Sanctions Law by any Sanctions Authority;
(g) Customer will supply to Provider promptly upon becoming aware of them, details of any inquiry, claim, action, suit, proceeding or investigation brought pursuant to any Sanctions Law by any Sanctions Authority against it, any member of Customer’s corporate group or any of their respective directors, officers, employees, agents or representatives, as well as any information on what steps are being taken with regards to answering or opposing such actions; and
(h) Customer will procure that no member of Customer's corporate group or any of their directors, officers, employees, agents or representatives or any other persons acting on any of their behalf, to the best of its knowledge and belief after having made due and careful enquiries, is or will become a Restricted Party.
6. TERM; TERMINATION.
(a) Term. This Product Schedule shall commence on the Effective Date and shall remain in effect during the Term.
(b) Termination. This Product Schedule can be terminated by either party without stating reason, subject to 60 days written notice. In addition to the grounds for termination of this Product Schedule set forth in the Agreement, if any, this Product Schedule shall also automatically terminate upon termination of the Agreement for any reason.
(c) Effect of Termination. Upon termination of this Product Schedule, all rights and duties of the parties with respect to any payment obligations, support, professional services and licences created prior to the effective date of any termination of this Product Schedule shall survive such termination mutatis mutandis. Termination of this Product Schedule shall not affect any other product schedules entered into by and between Customer and Provider pertaining to any other Provider product.
In addition to the sections itemized in Section 8(c) of the Agreement, the rights and responsibilities of the parties hereto under Sections 1, 5, and 6, this Product Schedule shall survive expiration or earlier termination of this Product Schedule along with any other provisions which by their nature extend beyond any such expiration or termination.
This Service Term outlines the following Cloud Service Management, Hosting, and Support Services for the Dispatcher Paragon Cloud.
ELIGIBILITY FOR THE SERVICE
The Management and Support Services are available for all Dispatcher Paragon Cloud products. The conditions for subscribing to the service are as follows:
- Have purchased either a monthly or annual subscription for the Dispatcher Paragon Cloud Service for the required number of connected devices that includes both a license to use the application as well as management and support services.
- Have an identity service provider that follows OpenID or OAuth 2.0 standards (e.g. Microsoft Azure AD, Okta, Google Identity).
- Have an internet connection and compatible MFP(s)
- Allow remote administrator access by Provider or its designated service provider for infrastructure management and maintenance, including application updates and critical security patching.
Service uptime is typically calculated according to the ITIL standards monthly and aggregated annually. Dispatcher Paragon Cloud will have a 99.5% uptime (maximum outage of approximately ten (10) minutes per 24 hours or sixty (60) minutes weekly or four (4) hours cumulative monthly).
Uptime percentage excludes scheduled downtime and any unavailability arising out of or caused by the failure of any third-party vendor, the Internet, an emergency or force majeure event, or another reason beyond our reasonable control.
Downtime caused by hardware failures including MFP failures that prevent users from accessing the service does not contribute to cloud service downtime.
SUPPORT & MAINTENANCE RESPONSIBILITIES (RACI MATRIX)
R = Responsible, A = Accountable, C = Consulted, I = Informed
|Cloud Service||INFRASTRUCTURE provisioning and maintenance||I||R, A|
|Management and set up of Azure subscription||R, A|
|Cloud APPLICATION maintenance||I||R, A|
|Disaster recovery, availability||R, A|
|Performance and availability monitoring and regular health checks||R, A|
|Regular system backups and execution of backup and recovery scenarios||R, A|
|YSoft print solution change management (Updates, upgrades, reconfiguration)||I||R, A|
|Change requests for changes in functionality or architecture of deployed solution||R, A|
|Security||Security - Regular audit (print/scan application, infrastructure for example)||R, A|
|Security - Edge device SW security (for example OS patches)||R, A|
|Security - Edge device physical security||R, A|
|Deployment||Required network connectivity + workstations||R, A||C|
|Prepare equipment (edge devices, print devices)||C||R, A|
|Create MSI/DMG package (OmniBridge)||C||R, A|
|Print queues deployment - including print drivers||R, A||C|
|Print device deployment - card reader/terminal embedded||C||R, A|
|Print device deployment - configuration (security, terminal embedded, including firmware)||C||R, A|
|Print device deployment - Install IWS||(R)||R, A|
|User identity management - Azure AD setup||R, A||C|
|Management & Operation||User management: adding, deleting or modifying users||R, A||C|
|MFD management: adding, deleting or modifying MFDs||R, A||C|
|Tenant management (creation, modification, deletion etc.) through Cloud Central portal||I||R, A|
|Trouble-shooting||Workstation client log access (gathering)||R||A|
|Trouble Shooting - edge device||C||A|
|IWS log access (gathering)||C||R|
|Cloud services log* access (gathering)||R, A|
|Log analysis*||R, A|
|Customer's management UI access as system admin||R, A|
*Please note that partners and customers do not have direct access to the service logs.
DATA CENTER LOCATION SELECTION
Selection of a good data center is very important for delivering high quality service performance and availability. Microsoft Azure Data Centers that offer high availability zones must be selected to provide the highest level of availability possible. Information regarding the geographical locations and type of data center can be found on the Microsoft website: https://azure.microsoft.com/en-us/global-infrastructure/geographies/
Hosted data center locations for Dispatcher Paragon Cloud are:
It is understood between Customer and Provider that most of the incidents with respect to the cloud print management application, tenants, users and devices ("Incidents") should be handled and resolved by Customer support personnel ("Provider Support Personnel") and Customer support personnel ("Customer Support Personnel"). In order to ensure an efficient Incident handling the following procedure shall apply:
1. A user experiences an Incident (e.g. the document has not been printed) and calls Customer Support Personnel;
2. Customer Support Personnel diagnoses the Incident based on actual knowledge and either (i) solves it or (ii) classifies it for further levels of support as – software related Incidents, MFP related Incident or Incident caused by broken hardware or other Incidents;
3. The Customer Support Personnel - if unable to solve the Incident locally - creates an Incident ticket and informs Provider Support Personnel about the Incident;