Master License Agreement
This master license agreement is hereby concluded and agreed between [buyer] ("you/your") and ADA Power Woman GmbH, FN 553790 y, Vinzenzgasse 30/9, 1180 Vienna ("ADA").
| This Master License Agreement, as of [date of signature] (the "Effective Date"), is hereby entered into and agreed upon by [name and address] ("You/Your") and ADA Power Woman GmbH, FN 553790 y, Vinzenzgasse 30/9, 1180 Vienna ( "ADA").
WHEREAS, ADA is a limited liability company established and existing under the laws of Austria and develops, operates and markets a digital platform and an application to facilitate female empowerment.
WHEREAS, by accessing, downloading, and/or using the ADA SoS, You agree to this Master License Agreement (the "Agreement"). This Agreement creates a binding legal agreement between You and ADA. Please read it carefully. If You do not agree with any of the terms herein, You should not access, download, and/or accept the ADA SoS. Please note that Your use of the ADA SoS constitutes Your digital acceptance of this Agreement and Your agreement to be bound by it.
WHEREAS, You desire to obtain a License to the ADA SoS and any ancillary products necessary to or provided in relation with the use of the ADA SoS.
WHEREAS, ADA reserves the right to modify this Master License Agreement at any time by email or posting a notice on the platform. Your access and/or use of the ADA SoS after the notice is posted indicates acceptance of those changes. WHEREAS, in consideration of the matters described above and of the mutual benefits and obligations set forth in this Agreement, ADA and You (individually a "Party" and collectively the "Parties" to this Agreement) agree as follows: |
| PROVISION OF SERVICES |
| Services License
Subject to continuous compliance with this Agreement, ADA hereby grants You a fee-based, personal, limited, non-exclusive, non-transferable, worldwide license (the "License") to access, use, and install its software and services (the "ADA SoS") under the Intellectual Property Rights of ADA. ADA SoS means ADA's software, services and documentation provided by or on behalf of ADA in connection with this Agreement. The documentation includes all supporting product assistance and technical specifications provided or made available by ADA. An in-depth description of the ADA SoS can be found in Annex 1. You may provide, make available to, or permit Your users to use or access the ADA SoS in compliance with this Agreement. ADA may update or modify the ADA SoS or provide alternative services or software to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of a third-party program. ADA's updates or modifications to the ADA SoS or provisions of alternative services or software will not materially reduce the level of performance, functionality, security, or availability of the ADA SoS during the Term. |
| Evaluation or Beta License
If the ADA SoS are provided to You for evaluation or beta, ADA grants to You a personal, limited, non-exclusive, non-transferable, worldwide evaluation license to use the ADA SoS, under the Intellectual Property Rights of ADA, solely for evaluation prior to purchase or implementation (an "Evaluation License"). The Evaluation License shall terminate on the end date of the pre-determined evaluation period or immediately upon notice from ADA in its sole discretion. Notwithstanding any other provision contained herein, the ADA SoS provided pursuant to an Evaluation License are provided to You "AS IS" without indemnification, support, or warranty of any kind, express or implied. Except to the extent such terms conflict with this section, all other terms of this Agreement shall apply to the ADA SoS licensed under an Evaluation License. |
| LICENSE RESTRICTIONS |
| License Restrictions
You may not (i) provide, make available to, or permit individuals other than Your users to use or access the ADA SoS in whole or in part; (ii) copy, reproduce, republish, upload, post, or transmit the ADA SoS (except for backup or archival purposes, which will not be used for transfer, distribution, sale, or installation on Your devices); (iii) license, sell, resell, rent, lease, transfer, distribute, or otherwise transfer rights to the ADA SoS unless as authorized in this Agreement; (iv) modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code of the ADA SoS; (v) create, market, distribute add-ons or enhancements or incorporate into another product the ADA SoS without prior written consent of ADA; (vi) remove any proprietary notices or labels on the ADA SoS, unless authorized by ADA; (vii) license the ADA SoS (a) if You (or any of Your users) are a direct competitor of ADA; (b) for the purposes of monitoring the availability, performance, or functionality of the ADA SoS or (c) for any other benchmarking or competitive purposes; (viii) use the ADA SoS to store or transmit infringing, libelous, unlawful, or tortious material or to store or transmit material in violation of third party rights, including privacy rights; (ix) use the ADA SoS to violate any rights of others; (x) use the ADA SoS to store or transmit malicious code, Trojan horses, malware, spam, viruses, or other destructive technology; (xi) interfere with, impair, or disrupt the integrity or performance of the ADA SoS or any other third party's use of the ADA SoS. |
| Your Obligations
You acknowledge, agree, and warrant that: (i) You will be liable for Your users' activities, omissions and compliance with this Agreement as if they were Your own, and if You become aware of any violation, You will immediately terminate the offending party's access to the ADA SoS and notify ADA; (ii) You and Your users will comply with all applicable local, state, federal, and international laws; (iii) You will establish a constant internet connection and electrical supply for the use of the ADA SoS, ensure the ADA SoS are installed on a supported platform as set forth in the Agreement, and the ADA SoS are used only with public domain or properly licensed third party materials; (iv) You will install the latest version of the ADA SoS on devices accessing or using the ADA SoS ; (v) You will keep Your registration information, billing information, passwords and technical data accurate, complete, secure and current for as long as You subscribe to the ADA SoS . Logo Usage. By purchasing the ADA SoS, you explicitly grant ADA permission to utilize your company's logo on the ADA website and promotional materials, solely for the purpose of showing you as ADA's valued customer, as long as you remain an active customer. You agree that ADA may display your logo in association with the business relationship, subject to the following conditions: a. The logo will not be altered, modified, or used in any way that misrepresents your brand identity. b. You may request the removal of your logo from our website or promotional materials at any time, and we will promptly comply with your request. |
| PROPRIETARY RIGHTS |
| Ownership of ADA Intellectual Property
The ADA SoS are licensed, not sold. Use of "purchase" in conjunction with License of the ADA SoS shall not imply a transfer of ownership. The License may not be sublicensed, assigned or transferred or otherwise made available to any third party, unless expressly agreed in writing between the Parties. Except for the limited rights expressly granted by ADA to You, You acknowledge and agree that all Intellectual Property Rights (the "Intellectual Property Rights"), which means all individual and overall rights to intellectual property, whether registered or unregistered, in particular copyrights, trademarks, tradenames, domain names, patents, utility models, semiconductor protection rights, inventions, design rights, software property and license rights, trade secrets, know-how, rights of use and all other intellectual property (including without limitation algorithms, business processes, improvements, enhancements, modifications, derivative works, information collected and analyzed in connection with the ADA SoS) and similar other proprietary rights, arising out of or relating to the ADA SoS, including, where such rights are obtained or enhanced by registration, any registration of such rights or applications or rights to apply for such registrations as well as rights and claims to these rights, remain the exclusive property of ADA or its suppliers or licensors.
All rights, title, and interest in and to content, which may be accessed through the ADA SoS, is the property of the respective owner and may be protected by applicable intellectual property laws and treaties. This Agreement gives You no rights to such content, including use of the same. ADA is hereby granted a royalty-free, fully paid, worldwide, exclusive, transferable, sub-licensable, irrevocable and perpetual license to use or incorporate into its products and services any information, data, suggestions, enhancement requests, recommendations or other feedback provided by You or Your users relating to the ADA SoS. All rights not expressly granted under this Agreement are reserved by ADA. |
| Ownership of ADA's Work
Any services rendered, as well as any reports, data and results produced, and Intellectual Property Rights developed, discovered or created by ADA in the course of rendering the ADA SoS or otherwise (each being a "Work"), shall be the sole property of ADA, and any title to such Work shall, upon creation, vest in ADA, which ADA shall be entitled to exploit and use freely and in any manner whatsoever, without any restrictions or without any payments. To the extent that title to any Work may not, by operation of law, vest in ADA, You hereby irrevocably assign any Intellectual Property Rights and other rights in any Work to ADA to the maximum extent possible (including all granted registrations and all applications for registration in relation to any such Intellectual Property Rights) and waive, to the extent permissible by law, in favor of ADA any rights You have in the same (including any moral and naming rights). |
| Ownership of Your Data
You and Your users retain all right, title, and interest in and to all copyright, trademark, patent, trade secret, intellectual property and other proprietary rights in and to Your data. ADA's right to access and use the same are limited to those expressly granted in this Agreement. No other rights with respect to Your data are implied. |
| TERM & TERMINATION |
| Term
Unless terminated earlier in accordance with this section, this Agreement will begin on the Effective Date and will remain in force for a period of 1 year (the "Initial Term"). You authorize ADA to renew the applicable ADA SoS upon the expiration of the Initial Term (each a "Renewal Term", and collectively with the Initial Term, the "Term"). The Renewal Term will be the same length as the Initial Term unless otherwise specified by ADA at the time of renewal. A Renewal Term will automatically begin unless there is a cancellation notice received by ADA within 90 days of the end of the Term. |
| Termination Rights
Either Party may terminate the Agreement immediately upon written notice if: (a) the other Party is in breach or default of any obligation hereunder, which breach or default is not cured within 30 days of receipt of written notice from the non-breaching party (if capable of being cured); or (b) the other Party becomes subject to bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, whether under domestic or foreign law and whether voluntary or involuntary, unless dismissed within 60 days of commencement thereof. Upon termination, You shall promptly pay to ADA any monies due and owing to ADA in relation to any ADA SoS prior to the date of such termination. |
| ADA Suspension or Termination Rights
ADA shall have the right to terminate the Agreement for cause with immediate effect if You
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| Effect of Termination
Termination shall not relieve You of the obligation to pay any fees or other amounts accrued or payable to ADA through the end of the current Term. You shall not receive a credit or refund for any fees or payments made prior to termination. Without prejudice to any other rights, upon termination, You must cease all use of the ADA SoS and all other Confidential Information related to ADA and delete, destroy or return (upon request by ADA) all such items and certify in writing within ten days after termination that the ADA SoS and Confidential Information have been irretrievably deleted. You agree not to make any copies, electronic storage or other records of any documents provided or submitted and to promptly and completely destroy or delete any documents necessarily made for archival purposes. Unless in accordance with our internal policies, contractual, legal, or other obligation, You acknowledge and agree that ADA has the right to delete data related to You, including all copies thereof. |
| Sections 3, 8, 9, 11 and 12 and all definitions used therein shall survive the expiration or termination of this Agreement. |
| DELIVERY |
| Within ten (10) working days of delivery of the ADA SoSYou shall conduct an examination of the ADA SoS to confirm that it conforms with the specifications set out in the Agreement. |
| In the event You determine the ADA SoS do not conform with the specifications as set out in the Agreement, You shall immediately advise ADA in writing, which shall include a detailed description of any deficiencies in the ADA SoS. This may be submitted in the form of a bug report or missing feature report. |
| In the event ADA concludes that said ADA SoS is in any way deficient, ADA shall, within twenty (20) working days of such determination repair or reconfigure said ADA SoS such that it complies with the specifications set out in the Agreement, or replace the ADA SoS with conforming software, in its sole discretion. |
| PAYMENT TERMS |
| Upon payment of fees and subject to continuous compliance with this Agreement, ADA hereby grants You the License to access, use, and install the ADA SoS during the Term. The services will be performed by means of "Software as a Service" unless agreed otherwise. |
| Payments made by You to ADA shall be facilitated through a third-party payment provider. All information that You provide in connection with the ADA SoS must be accurate, complete, and current. You agree to pay all charges incurred by any users of Your credit card, debit card, or other payment method used in connection with a purchase on the platform at the prices in effect when such charges are incurred. You also agree to pay any applicable taxes, if any, relating to any purchase. |
| The various billing period models available (the "License Billing Models"), attached hereto as Annex 2give You the option to pay monthly or annually. Paying for a full annual Term could lead to an agreement to a discounted rate for using the ADA SoS. A valid payment method, including a credit card, is required to process the payment for Your use of the ADA SoS. You will deposit an amount as a "balance" and use this balance to access the ADA SoS. You will be billed based on usage towards Your balance. By submitting such payment information, You automatically authorize ADA to charge the fees incurred through Your account to any such payment instruments. |
| If Your primary payment method fails, You authorize ADA to charge any other payment method in Your account. If You have not provided ADA with a backup payment method(s) and You fail to provide payment, or if all payment methods in Your account fail, ADA may suspend Your access to the ADA SoS. |
| The set-off of counterclaims against service fees as well as other payment obligations to ADA is not permitted under this Agreement and is hereby expressly excluded by the Parties, unless such claims have been expressly acknowledged by ADA. |
| ADA, in its sole discretion and at any time, may modify the fees. ADA will provide You with reasonable prior notice of any change in service fees to give You an opportunity to terminate Your account access before such change becomes effective. Your continued use of the ADA SoS, after the service fee change comes into effect, constitutes Your agreement to pay the modified service fee amount. |
| Except when required by law, paid service fees are non-refundable. Certain refund requests for the ADA SoS may be considered by ADA on a case-by-case basis and granted at the sole discretion of You. |
| FORCE MAJEURE |
| ADA will not be liable for any breach of the provisions of this Agreement due to any act or event beyond ADA's control, including without limitation strikes, lock-outs or other industrial action by third parties, civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war whether declared or not or threat or preparation for war, fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks ("Force Majeure Event"). |
If a Force Majeure Event takes place that affects the performance of ADA's obligations under this Agreement:
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| CONFIDENTIAL INFORMATION |
| "Confidential Information" means (i) all information (in whatever form), including without limitation, any know-how, technical information, research, data, analyses, compilations, studies, formulae, processes, designs, specifications, plans, prototypes, procedures, models, drawings, computer software, visual demonstrations, samples, marketing and business development plans, customer and partner names and other information related to customers and business partners, price lists, pricing policies and financial information, supplied by or on behalf of either Party to the other Party, whether before, on or after the date of this Agreement, in connection with this Agreement or otherwise related to the Party, together with any analyses, reports or documents which contain or reflect, or are derived or generated from, any such information and (ii) the existence and contents of this Agreement. Confidential Information may also include confidential or proprietary information disclosed to a disclosing Party by a third party. |
| The receiving Party will: (i) hold the disclosing Party's Confidential Information in confidence and use reasonable care to protect the same; (ii) restrict disclosure of such Confidential Information to those employees or agents with a need to know such information and who are under a duty of confidentiality respecting the protection of Confidential Information substantially similar to those of this Agreement; and (iii) use Confidential Information only for the purposes for which it was disclosed, unless otherwise set forth herein. The restrictions will not apply to Confidential Information, excluding personal data, to the extent it (i) is (or through no fault of the receiving Party, has become) generally available to the public; (ii) was lawfully received by the receiving Party from a third party without such restrictions; (iii) was known to the receiving Party without such restrictions prior to receipt from the disclosing Party; or (iv) was independently developed by the receiving Party without breach of this Agreement or access to or use of the Confidential Information. |
| The receiving Party may disclose Confidential Information to the extent the disclosure is required by law, regulation, or judicial order, provided that the receiving Party will provide to the disclosing Party prompt notice, where permitted, of such order and will take reasonable steps to contest or limit the steps of any required disclosure. The Parties agree that any material breach of Section 2 (License restriction) or this Section 8 (Confidential Information) will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of these sections in addition to any other relief to which the applicable Party may be entitled. |
All information derived from Confidential Information is also to be considered Confidential Information for the purposes of the Agreement. These restrictions shall end five (5) years after expiration or termination of the Agreement, but shall not apply to the Confidential Information which the receiving Party can demonstrate by contemporaneous written evidence:
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| INDEMNIFICATION |
| ADA Indemnification
ADA will indemnify, defend, and hold You harmless from any third party claim brought against You that the ADA SoS, as provided by ADA, infringe or misappropriate any patent, copyright, trademark, trade secret, or other intellectual property rights of a third party, provided (i) use of the ADA SoS by You is in conformity with the Agreement; (ii) the infringement is not caused by modification or alteration of the ADA SoS; and/or (iii) the infringement was not caused by a combination or use of the ADA SoS with products not supplied by ADA. ADA's indemnification obligations are contingent upon You: (i) promptly notifying ADA in writing of the claim; (ii) granting ADA sole control of the selection of counsel, defense, and settlement of the claim; and (iii) providing ADA with reasonable assistance, information and authority required for the defense and settlement of the claim. This section states ADA's entire liability (and shall be Your sole and exclusive remedy) with respect to indemnification to You. |
| Your Indemnification
You agree to indemnify, defend, and hold ADA and its affiliates, and its directors, employees, and agents harmless from and against any claims arising out of or due to: (i) Your data; (ii) Your (or Your user's) breach of this Agreement; (iii) Your (or Your user's) use of the ADA SoS in violation of third party rights, including any intellectual property or privacy rights, or any applicable laws; or (iv) Your (or Your user's) misuse of the ADA SoS. |
| The Party seeking indemnification under the Agreement will: (i) give the indemnifying Party prompt written notice of the claim, (ii) tender to the indemnifying Party control of the defense and settlement of the claim, and (iii) cooperate with the indemnifying Party in defending or settling the claim. The indemnified Party will have the right to participate at its own expense in any indemnification action or related settlement negotiations using counsel of its own choice. Neither Party may consent to the entry of any judgment or enter into any settlement that adversely affects the rights or interests of the other Party without that Party's prior written consent, which may not be unreasonably withheld. |
| WARRANTY |
| Each Party represents and warrants to the other Party that: (a) it has the right to enter into the Agreement and perform its obligations hereunder in the manner contemplated by the Agreement; (b) the Agreement does not conflict with any other agreement entered into by it; (c) in the performance of its obligations hereunder, it will fully comply with all applicable laws, regulations and ordinances; and (d) it has obtained all licenses, authorizations, approvals, consents or permits required to perform its obligations under the Agreement. |
| ADA represents and warrants that: (a) the ADA SoS shall, during the Term, substantially meet the specifications therefore set forth in the Agreement; and (b) its personnel who perform the ADA SoS shall have experience, training and expertise at least consistent with industry standards for their responsibilities. |
| LIMITATIONS OF LIABILITY |
| Nothing in this Agreement shall limit or exclude our liability for anything which cannot be excluded by law. |
Except as expressly and specifically provided in this Agreement:
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| ADA shall under no circumstances be liable for any loss You suffer where You have modified or varied the ADA SoS being provided to You. |
| ADA shall under no circumstances whatsoever be liable to You whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or indirect or consequential loss arising under or in connection with the Agreement. |
| ADA's total liability to You in respect of all other losses arising under or in connection with the Agreement whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the payment You have made for the ADA SoS in the last 12 months. |
| ADA cannot guarantee that the ADA SoS will not be interrupted or delayed and cannot be held liable for any loss You suffer as a result of interruptions or delays. |
| ADA cannot guarantee that the ADA SoS will produce Your desired result or meet Your expectations and ADA cannot be held liable for this. |
| Whilst ADA will use its reasonable endeavors to ensure that all necessary steps are taken to safeguard the data You provide in accordance with the ADA SoSYou are responsible for the backup of all data You own, and ADA cannot be held responsible for the loss or corruption of Your data through the ADA SoS. |
| ADA will exercise reasonable care to ensure that the ADA SoS are free of any viruses, errors and bugs and will indemnify You for any loss suffered as a result of its failure to exercise such reasonable care. In the event that ADA has exercised such reasonable care but You experience viruses, errors or bugs, ADA will not be responsible or liable for any loss suffered and this will not constitute a breach of the License. |
| GENERAL TERMS |
| Entire Agreement
This Agreement contains the entire agreement between the Parties with respect to the matters covered herein. The Agreement may be amended or modified only in writing duly executed by each Party. |
| Severability
If any provision of this Agreement is held to be unenforceable, illegal, or void, that shall not affect the enforceability of the remaining provisions. The parties further agree that the unenforceable provision(s) shall be deemed replaced by a provision(s) that is binding and enforceable and that differs as little as possible from the unenforceable provision(s), with considerations of the object and purpose of this Agreement. |
| Waiver
The delay or failure of either Party to exercise any right provided in this Agreement shall not be deemed a waiver of that right. |
| Governing Law
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation, including non-contractual disputes or claims, shall be governed by and construed in accordance with the laws of Austria, excluding its conflict of law rules and the UN Sales Convention (UN Sales Convention). The place of jurisdiction for all disputes arising out of or in connection with this Agreement shall be the competent court in Vienna, Austria. |
| [SIGNATURE PAGE FOLLOWS] |
| Annex 1 Licensed ADA SoS |
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| [see next page] |
| Annex 2
License Billing Models |
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Master License Agreement
This Master License Agreement is hereby entered into between [Purchaser] ("You/Your") and ADA Power Woman GmbH, FN 553790 y, Vinzenzgasse 30/9, 1180 Vienna ("ADA") is concluded and agreed.
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This Master License Agreement dated [Date of signature] (the "Effective Date") is hereby entered into between [Name and Address] ("You/Your") and ADA Power Woman GmbH, FN 553790 y, Vinzenzgasse 30/9, 1180 Vienna ("ADA") are concluded and agreed.
WOBEI ADA is a limited liability company incorporated and existing under the laws of Austria that develops, operates and markets a digital platform and application to promote the visibility of women.
By accessing, downloading and/or using the ADA SoS, you agree to be bound by this Master License Agreement (the "Agreement"). This Agreement creates a binding legal agreement between you and ADA. Please read it carefully. If you do not agree with any of the terms and conditions contained herein, you should not access, download and/or accept the ADA SoS. Please note that by using the ADA SoS, you digitally accept and agree to be bound by this Agreement.
WHEREAS, You wish to purchase a license to the ADA SoS and any Ancillary Products required for or provided in connection with the use of the ADA SoS.
ADA reserves the right to modify this Master License Agreement at any time by email or by posting a notice on the Platform. Your access to and/or use of the ADA SoS after the notice is posted will mean that you accept those changes.
ADA and you (individually a "Party" and together the "Parties" to this Agreement), in consideration of the foregoing and the mutual benefits and obligations set forth in this Agreement, agree as follows: |
| PROVISION OF SERVICES |
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Services license Subject to your continued compliance with this Agreement, ADA hereby grants to you a royalty-bearing, personal, limited, non-exclusive, non-transferable, worldwide license (the "License") to access, use and install its software and services (the "ADA SoS") under ADA's intellectual property rights. ADA SoS means the ADA Software, Services and Documentation provided by or on behalf of ADA in connection with this Agreement. Documentation includes all supporting product support and technical specifications provided or made available by ADA. For a detailed description of the ADA SoS, please see Attachment 1. You may provide, make available, or permit Your Users to use or access the ADA SoS in accordance with this Agreement. ADA may update or modify the ADA SoS or provide alternative services or software to reflect, among other things, changes in laws, regulations, rules, technologies, industry practices, system usage patterns, and the availability of third party programs. ADA's updates or modifications to the ADA SoS or provision of alternative services or software will not materially reduce the level of performance, functionality, security or availability of the ADA SoS during the Term. |
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Trial license or beta license If the ADA SoS is provided to you for testing or beta purposes, ADA grants you a personal, limited, non-exclusive, non-transferable, worldwide trial license to use the ADA SoS under ADA's intellectual property rights, solely for testing purposes prior to purchase or implementation (a "Trial License"). The Trial License shall terminate on the end date of the specified Trial Period or immediately upon notice by ADA in its sole discretion. Notwithstanding any other provision contained herein, the ADA SoS provided pursuant to a Trial License are provided to you "as is" without compensation, support or warranty of any kind, either express or implied. All other provisions of this Agreement apply to the ADA SoS licensed under a Trial License to the extent not inconsistent with this Section. |
| LICENSE RESTRICTIONS |
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License restrictions You may not (i) make available or permit access to all or any portion of the ADA SoS to any person other than Your Users; (ii) copy, reproduce, republish, upload, post or transmit (other than for backup or archival purposes not used for transmission, distribution, sale or installation on Your Equipment) the ADA SoS; (iii) license, sell, resell, rent, lease, transfer, distribute or otherwise transfer any rights in the ADA SoS except as permitted in this Agreement; (iv) modify, translate, reverse engineer, decompile, disassemble, create derivative works or otherwise attempt to derive the source code of the ADA SoS; (v) create, market, distribute add-ons or extensions, or integrate the ADA SoS into another product without ADA's prior written consent; (vii) license the ADA SoS (a) if you (or any of your users) are a direct competitor of ADA; (b) for the purpose of monitoring the availability, performance or functionality of the ADA SoS; or (c) for other benchmarking or competitive purposes; (viii) use the ADA SoS to store or transmit infringing, defamatory, unlawful or tortious material or to store or transmit material that infringes the rights of others, including privacy rights; (ix) use the ADA SoS to infringe the rights of others; (x) use the ADA SoS to store or transmit malicious code, Trojan horses, malware, spam, viruses or other destructive technologies; (xi) interfere with, impair or disrupt the integrity or performance of the ADA SoS or the use of the ADA SoS by any third party. |
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Your obligations You acknowledge, agree and warrant that: (i) you will be liable for your users' activities, omissions and compliance with this Agreement as if they were your own, and that if you become aware of any breach, you will immediately terminate such party's access to the ADA SoS and notify ADA; (ii) you and your users will comply with all applicable local, state, federal and international laws; (iii) You will provide a continuous internet connection and power supply for use of the ADA SoS, ensure that the ADA SoS are installed on a supported platform in accordance with the Agreement and that the ADA SoS are used only with public domain or properly licensed third party materials; (iv) You will install the latest version of the ADA SoS on devices accessing or using the ADA SoS; (v) You will keep your registration information, billing information, passwords and technical data accurate, complete, secure and current for as long as you subscribe to the ADA SoS. You will optionally use our Reporting service for HR administration purposes to measure product usage amongst Your team members. The reporting consists of anonymous volume usage data that does not share any PII or any individual usage data or usage trends. This information consists of app usage metrics such as the amount of app content consumed and when it is consumed, at the organizational or team level.
Logo use By purchasing the ADA SoS, you expressly grant ADA permission to use your company's logo on the ADA website and in promotional materials for the sole purpose of presenting you as a valued customer of ADA while you are an active customer. You agree that ADA may display your logo in connection with the business relationship subject to the following conditions: a. The logo will not be altered or used in a manner that misrepresents your brand identity. b. You may request the removal of your logo from our website or promotional materials at any time, and we will comply with your request as soon as possible. |
| PROPERTY RIGHTS |
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Ownership of the intellectual property of the ADA The ADA SoS are licensed, not sold. The use of "purchase" in connection with the license of the ADA SoS does not constitute a transfer of ownership. The license may not be sublicensed, assigned or transferred or otherwise made available to a third party unless expressly agreed to in writing by the parties. Except for the limited rights ADA expressly grants to you, you acknowledge and agree that all intellectual property rights (the "Intellectual Property Rights"), i.e. all individual and general intellectual property rights, whether registered or unregistered, including, without limitation, copyrights, trademarks, trade names, domain names, patents, utility models, semiconductor rights, inventions, design rights, software ownership and licensing rights, trade secrets, know-how, rights of use, and all other intellectual property rights (including without limitation algorithms, business processes, improvements, enhancements, modifications, derivative works, information collected and analyzed in connection with the ADA SoS) and similar other proprietary rights arising out of or related to the ADA SoS, including, to the extent such rights are obtained or extended by registration, any registration of such rights or applications or rights to apply for such registrations, and rights and claims to such rights, shall remain the exclusive property of ADA or its suppliers or licensors.
All right, title and interest in and to Content accessible through the ADA SoS is the property of its respective owner and may be protected by applicable intellectual property laws and treaties. This Agreement does not give you any rights to such content, including the use thereof. ADA is hereby granted a royalty-free, fully paid, worldwide, exclusive, transferable, sublicensable, irrevocable and perpetual license to use or incorporate into its products and services any information, data, suggestions, enhancement requests, recommendations or other feedback provided by you or your users relating to the ADA SoS. All rights not expressly granted in this Agreement are reserved by ADA. |
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Ownership of the work of ADA All Services provided and all reports, data and results and intellectual property developed, discovered or created by ADA in the course of providing the ADA SoS or otherwise (each a "Work"), shall be the sole property of ADA, and all ownership rights in such Works shall vest in ADA upon their creation, and ADA shall be entitled to exploit and use the same freely and in any manner, without any restrictions and without any payments. To the extent ownership of a Work does not pass to ADA by operation of law, you hereby irrevocably assign to ADA all intellectual property and other rights in a Work to the fullest extent permitted by law (including all registrations issued and all applications for registration with respect to such intellectual property rights) and, to the fullest extent permitted by law, waive in favor of ADA all rights you may have therein (including all moral and name rights). |
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Ownership of your data You and Your Users retain all right, title and interest in and to all copyrights, trademarks, patents, trade secrets, intellectual property and other proprietary rights in Your Data. ADA's right to access and use it is limited to the rights expressly granted in this Agreement. No other rights are implied with respect to your data. |
| TERM & TERMINATION |
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Runtime Unless earlier terminated in accordance with this Section, this Agreement shall commence on the Effective Date and remain in effect for a period of 1 year (the "Initial Term") - unless a different term is agreed to in writing. You authorize ADA to renew the applicable ADA SoS after the initial term expires (one "Extension Term" and, together with the initial term, the "Term"). The Renewal Term will be the same length as the Initial Term unless ADA specifies otherwise at the time of renewal. An Extension Term begins automatically unless ADA receives notice within 90 days before the expiration of the Term a notice of termination. |
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Termination rights Either party may terminate this Agreement effective immediately by written notice if: (a) the other party breaches or defaults in any obligation under this Agreement, which breach or default is not cured within 30 days after receipt of written notice from the non-breaching party (if it can be cured); or (b) the other party becomes subject to any bankruptcy or other insolvency, receivership, liquidation or assignment for the benefit of creditors, whether under domestic or foreign law and whether voluntary or involuntary, unless it is discontinued within 60 days after the commencement thereof. Upon termination, you shall promptly pay ADA all monies owed by you to ADA with respect to the ADA SoS prior to the date of termination. |
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ADA rights to suspension or termination. ADA has the right to terminate the Agreement for cause with immediate effect if you
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Effect of the termination Termination will not relieve you of the obligation to pay any fees or other amounts accrued or payable to ADA through the end of the current term of the Agreement. You will not receive any credit or refund for any fees or payments made by you prior to termination. Without prejudice to any other rights, upon termination, you must cease all use of the ADA SoS and all other ADA-related Confidential Information and delete, destroy or return (upon ADA's request) all such items and certify in writing within ten days of termination that the ADA SoS and Confidential Information have been irretrievably deleted. You agree not to make any copies, electronic storage or other records of any documents provided or transmitted and to promptly and completely destroy or delete all documents necessarily created for archival purposes. You acknowledge and agree that ADA has the right to delete any data concerning you, including any copies thereof, except in accordance with our internal policies, contractual, legal or other obligations. |
| Sections 3, 8, 9, 11 and 12 and all definitions used therein shall survive the expiration or termination of this Agreement. |
| DELIVERY |
| Within ten (10) working days after delivery of the ADA SoS, perform an inspection of the ADA SoS to confirm that it conforms to the specifications set forth in the Contract. |
| If you determine that the ADA SoS does not conform to the specifications set forth in the Agreement, you must promptly notify ADA in writing and provide a detailed description of any deficiencies in the ADA SoS. This may be in the form of a defect report or a missing features report. |
| If ADA concludes that the ADA SoS is defective in any way, ADA shall, within twenty (20) business days of such determination, repair or reconfigure the ADA SoS so that it conforms to the specifications set forth in the Agreement, or replace the ADA SoS with conforming software, at ADA's option. |
| TERMS OF PAYMENT |
| Upon payment of the Fees and subject to your continued compliance with this Agreement, ADA hereby grants to you the license to access, use and install the ADA SoS during the Term. The Services shall be provided by means of "Software as a Service" unless otherwise agreed. |
| Payments you make to ADA are processed through a third party payment processor. All information you provide in connection with the ADA SoS must be accurate, complete and current. You agree to pay all fees incurred by users of your credit card, debit card or other payment method in connection with a purchase on the Platform at the rates in effect at the time such fees are incurred. You also agree to pay all applicable taxes, if any, in connection with a purchase. |
| The different models for the billing period (the "License Billing Models"), which are shown as Appendix 2 attached, offer you the option to pay monthly or annually. Payment for a full annual term may result in an agreement for a discounted price for use of the ADA SoS. A valid payment method, including a credit card, is required to process payment for your use of the ADA SoS. You will deposit an amount as "credit" and use that credit to access the ADA SoS. Billing will be based on the use of your credit. By submitting this payment information, you automatically authorize ADA to deduct charges incurred through your account from these payment instruments. |
| If your primary payment method fails, you authorize ADA to charge any other payment method in your account. If you have not provided ADA with a replacement payment method(s) and payment fails, or if all payment methods in your account fail, ADA may suspend your access to the ADA SoS. |
| The set-off of counterclaims with service fees as well as other payment obligations to ADA is not permitted under this Agreement and is hereby expressly excluded by the Parties unless such claims have been expressly acknowledged by ADA. |
| ADA may change the fees at its sole discretion and at any time. ADA will provide you with reasonable advance notice of any change in the Service Fees to give you the opportunity to cancel your account access before such change becomes effective. Your continued use of the ADA SoS after the effective date of the fee change will be deemed to be your agreement to pay the revised fees. |
| Except as required by law, paid service fees are not refundable. Certain ADA SoS reimbursement requests may be reviewed by ADA on a case-by-case basis and granted at your sole discretion. |
| UNAVOIDABLE EVENT |
| ADA shall not be liable for any breach of the provisions of this Agreement resulting from acts or events beyond ADA's control, including but not limited to strikes, lockouts or other industrial action by third parties, internal disturbances, riots, invasions, terrorist attacks or threats of terrorist attacks, declared or undeclared wars, threats of war or preparations for war, fires, explosions, storms, floods, earthquakes, subsidence, epidemics or other natural disasters, or failures of public or private telecommunications networks ("Unavoidable Event"). |
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If an Unavoidable Event occurs that affects ADA's performance of its obligations under this Agreement:
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| CONFIDENTIAL INFORMATION |
| "Confidential Information" means (i) all information (in whatever form), including, without limitation, know-how, technical information, research, data, analyses, compilations, studies, formulas, processes, designs, specifications, plans, prototypes, processes, models, drawings, computer software, visual demonstrations, samples, marketing and business development plans, names of customers and partners and other information relating to customers and business partners, price lists, pricing policies and financial information provided by or on behalf of a Party to the other Party prior to, on or after the date of this Agreement in connection with this Agreement or otherwise relating to such Party, together with any analyses, reports or documents containing or reflecting such information or derived or prepared therefrom, and (ii) the existence and contents of this Agreement. Confidential Information may also include confidential or proprietary information disclosed to a disclosing party by a third party. |
| The Receiving Party shall: (i) keep the Confidential Information of the Disclosing Party confidential and protect it with reasonable care; (ii) limit the disclosure of such Confidential Information to those employees or agents who have a need to know such information and who are subject to a confidentiality obligation with respect to the protection of Confidential Information substantially similar to that imposed by this Agreement; and (iii) use the Confidential Information only for the purposes for which it was disclosed, except as otherwise provided in this Agreement. The Restrictions shall not apply to Confidential Information, other than Personal Data, to the extent that such Confidential Information (i) is generally available to the public (or has become available through no fault of the Receiving Party); (ii) was lawfully received by the Receiving Party from a third party without such restrictions; (iii) was known to the Receiving Party prior to receipt from the Disclosing Party without such restrictions; or (iv) was independently developed by the Receiving Party without any breach of this Agreement or access to or use of the Confidential Information. |
| The Receiving Party may disclose Confidential Information to the extent disclosure is required by law, regulation or court order, provided that the Receiving Party promptly notifies the Disclosing Party of any such order, to the extent permitted, and takes reasonable steps to challenge or limit the steps of any required disclosure. The Parties agree that any material breach of Section 2 (License Restriction) or this Section 8 (Confidential Information) will cause irreparable harm and that injunctive relief in a court of competent jurisdiction is appropriate to prevent any initial or continuing breach of such Sections, in addition to any other remedies to which such Party may be entitled. |
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Any information derived from Confidential Information shall also be deemed Confidential Information for purposes of the Agreement. These restrictions shall terminate five (5) years after the expiration or termination of the Agreement, but shall not apply to Confidential Information that the receiving party can substantiate by contemporaneous written evidence:
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| DISCLAIMER |
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Compensation through ADA ADA will indemnify, defend and hold You harmless from any third party claim brought against You that the ADA SoS provided by ADA infringes or misappropriates any patent, copyright, trademark, trade secret or other intellectual property right of any third party, provided that (i) Your use of the ADA SoS is in accordance with the Agreement; (ii) the infringement was not caused by any modification or alteration of the ADA SoS; and/or (iii) the infringement was not caused by any combination or use of the ADA SoS with products not supplied by ADA. ADA's indemnification obligations are conditioned upon You: (i) promptly notifying ADA in writing of the Claim; (ii) giving ADA sole control over the selection of counsel, defense and settlement of the Claim; and (iii) providing ADA with reasonable assistance, information and authority necessary to defend and settle the Claim. This section governs ADA's entire liability (and is your sole and exclusive remedy) with respect to indemnification from you. |
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Your compensation You agree to indemnify, defend and hold ADA and its affiliates and its directors, employees and agents harmless from and against any and all claims arising out of or based on: (i) your data; (ii) your (or your user's) breach of this Agreement; (iii) your (or your user's) use of the ADA SoS in violation of any third party rights, including intellectual property or privacy rights, or applicable laws; or (iv) your (or your user's) misuse of the ADA SoS. |
| The party seeking indemnification under the Agreement shall: (i) promptly notify the indemnifying party in writing of the claim, (ii) give the indemnifying party control of the defense and settlement of the claim, and (iii) cooperate with the indemnifying party in the defense or settlement of the claim. The Indemnified Party shall have the right to participate, at its own expense, in any indemnification action or related settlement negotiations with counsel of its choice. Neither party shall consent to the entry of any judgment or to the making of any settlement affecting the rights or interests of the other party without the other party's prior written consent, which consent shall not be unreasonably withheld. |
| WARRANTY |
| Each party represents and warrants to the other party: (a) that it has the right to enter into the Agreement and to perform its obligations under the Agreement in the manner contemplated by the Agreement; (b) that the Agreement is not inconsistent with any other agreement it has entered into; (c) that it will fully comply with all applicable laws, rules and regulations in the performance of its obligations under the Agreement; and (d) that it has obtained all licenses, approvals, consents or permits necessary to perform its obligations under the Agreement. |
| ADA represents and warrants that: (a) during the Term, the ADA SoS will substantially conform to the specifications set forth in the Agreement; and (b) its personnel performing the ADA SoS will have experience, training, and expertise at least equal to the industry standard for their duties. |
| LIMITATIONS OF LIABILITY |
| Nothing in this Agreement limits our liability for anything that cannot be excluded by law. |
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Except as expressly and specifically provided in this Agreement:
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| Under no circumstances will ADA be liable for any damages you may suffer if you have modified or altered the ADA SoS provided to you. |
| ADA shall not be liable to you under any circumstances, whether in contract, tort (including negligence), breach of statutory duty or otherwise, for any loss of profit or indirect or consequential loss arising out of or in connection with the Contract. |
| ADA's total liability to you for all other losses arising out of or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, will not, under any circumstances, exceed the payment you have made for the ADA SoS in the previous 12 months. |
| ADA cannot guarantee that the ADA SoS will not be interrupted or delayed and will not be liable for any losses you suffer as a result of interruptions or delays. |
| ADA cannot guarantee that the ADA SoS will achieve the result you desire or meet your expectations, and ADA cannot be held liable for this. |
| While ADA will make all reasonable efforts to ensure that all necessary steps are taken to protect the data you provide in accordance with the ADA SoS, you are responsible for securing all data you hold and ADA cannot be held responsible for any loss or damage to your data via the ADA SoS. |
| ADA will take reasonable care to ensure that the ADA SoS are free from viruses, errors and bugs and will indemnify you for any loss caused by your failure to take such reasonable care. In the event that ADA takes such reasonable care but still detects viruses, errors or bugs, ADA shall not be responsible or liable for any loss suffered and this shall not constitute a breach of the License. |
| GENERAL CONDITIONS |
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Entire agreement This Agreement comprises the entire agreement between the parties with respect to the matters covered herein. The Agreement may be amended or modified only in writing duly signed by each party. |
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Severability clause If any provision of this Agreement is found to be unenforceable, illegal or void, the enforceability of the remaining provisions shall not be affected. The parties further agree that the unenforceable provision(s) shall be deemed to be superseded by a provision(s) which is (are) binding and enforceable and which, taking into account the object and purpose of this Agreement, differs(s) as little as possible from the unenforceable provision(s). |
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Waiver The delay or failure of any party to exercise any right provided for in this Agreement shall not be deemed a waiver of such right. |
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Applicable law This Agreement and any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation, including non-contractual disputes or claims, shall be governed by Austrian law, excluding its conflict of law rules and the UN Sales Convention. The place of jurisdiction for all disputes arising out of or in connection with this Agreement shall be the competent court in Vienna, Austria. |
| [SIGNATURE PAGE FOLLOWS] |
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Appendix 1 Licensed ADA SoS |
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Annex 2 Models for license accounting |
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