Terms And Conditions 6 March 2019
between Clay Paky, … (“CLAY PAKY”) and … (“PARTNER”) (individually a “Party” or collectively “Parties”)
PARTNER's terms and conditions shall not apply, even if CLAY PAKY does not separately object to their validity. Deviating or contradictory terms and conditions shall therefore only apply if they have been accepted by CLAY PAKY in writing.
- Provision of Services
- CLAY PAKY will provide PARTNER with support as indicated in the context of the offered packages.
- To provide the Trial-Services, CLAY PAKY may at its sole discretion and at any time involve subcontractors.
- Registration and Access to the Trial-Services
PARTNER can access the Trial-Services via a web-interface https://live.cloudiobox.tech using a company account created and provided by CLAY PAKY. PARTNER must keep the account login and password secure and will be responsible for all activity occurring under PARTNER’s account. PARTNER shall immediately notify CLAY PAKY of any unauthorized use of its account or any other known or suspected breach of security.
- PARTNER’s Duties
- PARTNER undertakes to reasonably cooperate with CLAY PAKY and to implement updates provided by CLAY PAKY without undue delay.
- PARTNER must comply with the current technical documentation applicable to the Trial-Services as referenced in Section a and as updated by CLAY PAKY from time to time.
- PARTNER shall not: (i) pass on Trial-Services to third parties; (ii) transmit or distribute any code intended to harm or change a network, computer, mobile device, the Trial-Services, devices or the software embedded in devices; (iii) use the Trial-Services to violate the rights of others or to distribute spam; (iv) interfere with, disrupt, or attempt to gain unauthorized access to the servers and networks connected to the Trial-Services, or violate the policies of those networks; (v) attempt to access the Trial-Services other than through the applicable interface provided by CLAY PAKY; (vi) decompile, reverse engineer, disassemble, or decrypt the Trial-Services or the underlying software except as allowed by applicable law; (vii) make any modification to or derivative work from the Trial-Services or the underlying software; (viii) violate any policies, laws or regulations governing the use of the Trial-Services, including export controls and international trade laws; (ix) remove, disable, circumvent or workaround any copy protection, rights management, security features or proprietary notice in the Trial-Services or the underlying software; or (x) install or use non-CLAY PAKY software or technology in any way that would subject CLAY PAKY IPR or technology to any other license terms.
- The Trial-Services are not intended for use in any application or situation where failure of the Trial-Services could lead to the death or serious bodily injury of any person, or to severe physical or environmental damage or in other critical or security-related applications.
- Rights to Use Trial-Services
- PARTNER shall not pass on Trial-Services to third parties or duplicate Trial-Services. PARTNER is not granted a right to modify, adapt, or translate the Trial-Services or create derivative works from the Trial-Services except as allowed by applicable law.
- PARTNER shall not remove notices in the Trial-Services or the underlying software that refer to confidentiality or Intellectual Property Rights.
- Certain components of the Trial-Services and the underlying software are subject to open source license terms. They are identified, together with their respective copyright notices and applicable license text, on the website https://live.cloudiobox.tech/licenses.
- Non-CLAY PAKY software or technology
PARTNER is solely responsible for any non-CLAY PAKY software or technology that it installs or uses with the Trial-Services. CLAY PAKY is not a party to and shall not be bound by any terms governing the use of any non-CLAY PAKY software or Trial-Services.
All notices to CLAY PAKY shall be sent in electronic form to email@example.com All notices to PARTNER shall be sent in electronic form to the email address provided as part of the Registration Information.
CLAY PAKY welcomes feedback, suggestions, ideas, proposals or recommendations from PARTNER or its PARTNER(s) regarding the Trial-Services (“Feedback”). PARTNER hereby grants CLAY PAKY an irrevocable, non-exclusive, worldwide, free-of-charge and transferable (sub-)license, including the right to sub-license, to use Feedback in any way, to commercialize and to disclose and will confirm this license grant in writing and provide all assistance necessary for CLAY PAKY to secure its rights upon request.
- CLAY PAKY intends to achieve, but does not warrant, an overall availability of the Trial-Services during working days of 85 %.
- Each Party has endeavored and will endeavor to provide the other Party with the proper information for the purposes set forth in these terms and conditions. The disclosing Party, however, makes no representations or warranties that the information disclosed to the other Party is (i) complete, exact, accurate, fit or sufficient for any particular purpose or for any use of the results based on the information, or (ii) will not infringe on proprietary rights of third parties.
- For the avoidance of doubt, both Parties agree that the Pilot Project will be conducted in a way which complies with all the regulations and legal requirements applicable.
- The Party’s shall only be liable in the event of intent or gross negligence. Liability for slight negligence shall be excluded. In the event of gross negligence, each Party’s liability shall be limited to typical foreseeable damages. This shall apply to any damages claim irrespective of their legal basis.
- Notwithstanding the foregoing, both Parties shall be fully liable for claims for damages (i) to life, body or health, (ii) in the case of fraudulently suppressed defects (arglistiges Verschweigen), (iii) in the event of the assumption of a guarantee and (iv) for violations of the Product Liability Act.
- In any case, CLAY PAKY shall not be liable for a loss of PARTNER Data to the extent that the damage is due to the fact that the PARTNER has failed to carry out data backups and thereby ensure that lost data can be restored with reasonable effort.
- Any Damages Claim resulting from defects will expire within one year. Any other Damages Claim against CLAY PAKY will expire within two years from the date the cause of action arises.
- The Trial-Services are protected by passwords and other security measures. The PARTNER is responsible for setting security guidelines to prevent unauthorized access to PARTNER Data and devices. In particular, CLAY PAKY cannot be held responsible for data breaches or machine misuse resulting from the use of unsafe passwords or lack of security implementation on the PARTNER or PARTNER side or on the equipment and devices used by the PARTNER or PARTNER.
- Indemnification by CLAY PAKY
- If a third party raises a finally adjudicated claim against PARTNER for infringement of third party Intellectual Property Rights (“Third Party IPR”) by the Trial-Services, CLAY PAKY shall at its cost acquire for PARTNER a right to use the Trial-Services. In case this is not possible at economically reasonable conditions, CLAY PAKY’s liability shall be limited as follows:
- CLAY PAKY shall indemnify and hold harmless PARTNER against reasonable legal costs and damages of PARTNER caused by Third Party IPR infringement by the Trial-Services as such up to the amount of an appropriate license fee, which the owner of the Third Party IPR could claim directly from CLAY PAKY for the Trial-Services.
- For the future, CLAY PAKY shall, if economically reasonable, at its option develop a non-infringing service, which substantially complies with the specifications of the infringing Trial-Service, modify the Trial-Service to become non-infringing or deliver an equivalent non-infringing service.
- The obligations of CLAY PAKY mentioned in this Section above apply under the precondition that PARTNER informs CLAY PAKY without undue delay in writing of any claims for infringement of Third Party IPR, does not accept on his own any such claims and conducts any disputes, including settlements out of court, only in agreement with CLAY PAKY.
- CLAY PAKY shall not be obliged pursuant to this Section to the extent that the claim or judgment is based on
- any combination of Trial-Services with other products or Services if the infringement resulted from the combination;
- any specifications or materials PARTNER provides or makes available;
- the unauthorized modification or use of the Trial-Services;
- the failure to prevent or mitigate losses, damages, costs and expenses;
- any data or non-CLAY PAKY software originating from PARTNER;
- PARTNER’s use of a Service after CLAY PAKY notifies PARTNER to discontinue that use due to a third-party claim.
PARTNER will reimburse CLAY PAKY for any costs or damages resulting from any of the above actions.
- This Section 11 constitutes the exclusive remedy for such a claim.
- Indemnification by PARTNER
- PARTNER will defend CLAY PAKY against any claims made by an unaffiliated third party that (i) any data or any PARTNER or PARTNER software infringes its IPR; or (ii) arises from a violation of Sections c, 4.d and 4.e.
- PARTNER will indemnify and hold harmless CLAY PAKY against reasonable legal costs and damages of CLAY PAKY caused by Third Party IPR infringement by data or PARTNER or PARTNER software. PARTNER will also indemnify and hold harmless CLAY PAKY for the amount of any resulting adverse final judgment (or settlement PARTNER consents to).
- Subject to Section 14, this Section 12 constitutes the exclusive remedy for such a claim.
- Public Statements and Trademarks
- Any publication or press release shall require the other Party’s prior written consent.
- CLAY PAKY does not grant any rights to use CLAY PAKY’s trademarks or similar rights without CLAY PAKY’s prior written consent.
- Term, Termination and Suspension
- PARTNER shall promptly return (or destroy, at CLAY PAKY’s instruction) and make no further use of any Confidential Information disclosed by CLAY PAKY;
- any rights, remedies, obligations or liabilities of the Parties that have accrued up to the date of termination shall not be affected or prejudiced.
- Data Protection, PARTNER Data and compliance
- CLAY PAKY shall be entitled to use PARTNER’s data, as needed to provide the Trial-Services and for any other purpose, including in particular, (i) analyzing such data to improve CLAY PAKY’s Trial-Services or offer additional Trial-Services (to the extent permitted by applicable data protection laws), (ii) complying with any applicable law, regulation, legal process or government request, (iii) enforcing CLAY PAKY’s agreements and policies, (iv) protecting the security or integrity of CLAY PAKY’s Trial-Services, its IT system and products, or (v) protecting CLAY PAKY, CLAY PAKY’s customers or partners, or the public from harm or illegal activities.
- Audit Right
- Force Majeure
- Export Control
- For all Trial-Services, including any software CLAY PAKY may provide in connection with those Trial-Services, PARTNER shall comply with all applicable national and international (re-) export control regulations (“Export Regulations”). In any event, Purchaser shall comply with the (re-) export control regulations of Italy, of Germany, of the European Union and of the United States of America.
- PARTNER represents that PARTNER, its employees or End Customers are not listed in relevant sanctions lists based on Export Regulations issued, without limitation, by the European Union and its member states, and of the United States of America.
- CLAY PAKY shall not be obliged to fulfill this agreement if such fulfillment is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions.
- Governing Law and Arbitration
- Each Party may seek provisional measures from any court of competent jurisdiction, including without limitation provisional injunctive relief, provided that the final resolution of the dispute is through the arbitral tribunal appointed in accordance with this Section.
- “Affiliate(s)” shall mean in case of CLAY PAKY, OSRAM Licht AG and all entities which are controlled by OSRAM Licht AG, whether directly or through one or more intermediaries, and in case of PARTNER all entities which are controlled by PARTNER, whether directly or through one or more intermediaries. For purpose of this definition “controlled” means ownership of securities representing fifty percent (50 %) or more of the voting capital stock or other interest having voting rights with respect to the election of the board of directors or similar governing authority, or any other power by contract or in any other form which entitles such named entity to the respective voting rights;
- "Confidential Information" shall mean any information (other than data and PARTNER Data), including but not limited to business, commercial or technical information, and all record bearing media containing or disclosing such information and techniques of the disclosing Party or its Affiliates, which is marked "Confidential" or similarly labelled or which shall be deemed confidential because its nature or the circumstances surrounding its disclosure show that the information ought to be treated confidential. Confidential Information shall include any copies or abstracts made thereof as well as any apparatus, modules, samples, prototypes or parts thereof;
- “PARTNER Data” shall mean the data gathered during and produced by the use of the Trial-Services by the PARTNER;
- “Intellectual Property Rights” or “IPR” shall mean all patents, utility patents, design patents, marks, trade names, domain names, copyrights, computer software programs, know-how, trade secrets and other (registered or unregistered) intellectual property rights (and any applications therefor);
- “CLAY PAKY IPR” shall mean all IPR owned by or licensed to CLAY PAKY, which can be made available to PARTNER without consent of or payment to a third party (as long as such right to make available exists); and
- “Registration Information” shall mean information provided by PARTNER in the registration process.
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