Online Pitch Tool License & Service Agreement
Agfa Graphics delivers and manages, under a software as a service model, a hosted Online Pitch Tool and associated services which enables registered users to create, customize and distribute online Pitches (i.e. short presentations) through a personalized URL. You have requested Agfa Graphics to make available, and Agfa Graphics has agreed to make available to You, this solution and associated services in accordance with the terms and subject to the conditions set out below.
You should carefully read these terms and conditions before accepting this Online Pitch Tool License and Service Agreement, and installing and/or using this Software (as defined below). This Online Pitch Tool License and Service Agreement is a legal agreement between You and Agfa Graphics NV, Septestraat 27, 2640 Mortsel, Belgium ("Agfa Graphics"), and describes the terms and conditions pursuant to which Agfa Graphics shall license to You this Software, provided however that in the event a hardcopy license agreement with respect to the Software is signed by or on behalf of both You and Agfa Graphics whose terms vary from this Agreement, then such executed hardcopy license agreement shall govern Your Use of the Software. In this Agreement “You” means, and “Your” refers to, the corporation or other entity that obtains the Software and enters into this Agreement, including both the reader and any corporate licensee.
BY CLICKING THE “ACCEPT” BUTTON BELOW OR INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE, YOU ACCEPT, AND AGREE TO BE BOUND BY, THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT. If you do not agree with THESE TERMS, DO NOT CLICK THE “ACCEPT” BUTTON AND DO NOT INSTALL, COPY OR OTHERWISE USE THE SOFTWARE.
1.1 “Access” means (i) in respect of a User, access to the Online Pitch Tool for the purpose of creating your own pitches, uploading images and/or editing text and distributing your pitches online through a personalized URL, and (ii) in respect of You, access to and use of the Software and Services for the purpose of establishing and managing one or more pitches, comprising a.o. of receiving and accessing input entered by Users.
1.2 “Agreement” means this Online Pitch Tool License and Service Agreement together with the exhibits attached hereto, and any varying or additional terms set forth in a Statement of Work.
1.3 “Online Pitch Tool” means the secure website platform on which the Software is run and that hosts the Pitches through which You offer online print services.
1.4 “Customer Data” means any analytic reports that You collect on the use of Your Pitches.
1.5 “Documentation” means any explanatory written materials and files provided to You in connection with the Software and Services.
1.6 “Effective Date” means the date that You have accepted this Agreement.
1.7 “Fee” shall have the meaning set out in the Section 6.
1.8 “Personalized Content” means any and all content that You or a User upload or enter in the Online Pitch Tool for the purpose of creating and customizing your Pitches.
1.10 “Services” means the services Agfa Graphics provides in connection with the Software.
1.11 “Software” means the object code version of Online Pitch Tool, which is made available to You on the Online Pitch Tool.
1.13 “Pitch” means an online presentation established, created and run by You with access through a personalized URL (PURL).
1.14 “User” means customers or prospective customers of You that enter the Online Pitch Tool.
2.1 Software License. Subject to the terms and conditions of this Agreement, Agfa Graphics grants You a worldwide, non-exclusive, non-transferable, limited license to Access the Software and to grant Access to Users. This license transfers to You neither title nor any proprietary or intellectual property rights to the Software, Documentation, or any copyrights, patents, or trademarks, embodied or used in connection therewith, except for the limited rights expressly granted herein. You acknowledge that all right, title and interest in and to the Software are and shall remain with Agfa Graphics, including all improvements, modifications, suggestions, enhancement requests, feedback, recommendations or derivative works thereof.
2.2 Licenses from You. The copyright in Personalized Content, including all information, data, text, music, sound, photographs, graphics and video messages, the selection and arrangement thereof, is owned by or licensed to You or User. To the extent necessary to provide the Software and Services, You and/or User grants to Agfa Graphics a non-exclusive, royalty-free, limited license to use, copy, transmit, indexing and/or display Personalized Content.
2.3 License to Services. Subject to compliance with this Agreement Agfa Graphics grants to You, during the Term, a personal right and license to Access the Services through the Online Pitch Tool.
3. OBLIGATIONS AND RESTRICTIONS
3.1 Content and Distribution Restrictions. You agree, and You shall procure that Users shall agree, to only make available Personalized Content that originates with and/or is licensed to You or such Users, for the purposes for which it is used by You or such Users. Except as otherwise provided in this Agreement, it is Your sole responsibility to manage any reports of violations reported to You (including without limitation privacy notice violations, etc.). You agree and undertake that Your use of the Software and Services will not include illegal material, including but not limited to material that infringe any intellectual property right or violates any applicable criminal, civil or statutory laws or regulations.
3.2 Customer Content. Agfa Graphics shall assume no responsibility for Personalized Content. You acknowledge and agree that You are solely responsible for promptly (i) removing Personalized Content if You are notified or otherwise have reason to believe that such Personalized Content violates relevant laws, and (ii) ceasing to distribute Personalized Content that violates relevant laws.
3.3 Restrictions. You may not (i) rent, lease, sublicense, assign or transfer Your rights in the Software and Services, or authorize all or any portion of the Software to be copied onto another user’s computer except as may be expressly permitted by this Agreement; (ii) introduce a virus, worm, Trojan horse, so-called trap doors or other harmful software code that may damage or adversely affect the operation of the Online Pitch Tool portal, Software or Services; (iii) use the Software or Services in any manner that could overburden or otherwise impair the Online Pitch Tool portal or the network(s) connected thereto; (iv) upload, or otherwise make available, files that contain images, photographs, software, or other material protected by intellectual property laws, including, for example, and not as limitation, copyright or trademark laws (or by rights of privacy or publicity) unless You own or control the rights thereto or have received all necessary consent to do the same.
3.4 Log-in Information. To gain access to the Online Pitch Tool portal, You and Users will receive one or more Log-in ID’s. You and User are responsible for all activity occurring under its Log-in ID. You must keep Your Log-in ID confidential and not share it with or disclose it to third parties and You shall procure that Users observe the same.
4.1 Fees and Expenses. No fees or expenses will be charged for the use of the Online Pitch Tool.
4.2 Suspension of Access. At any time Agfa Graphics shall have the right to suspend Access to the Software and Services, without prior notice.
5. CONFIDENTIALITY; PUBLICITY; PRIVACY; SECURITY
5.1 Confidentiality. Each Party may have access to information that is confidential to the other Party (“Confidential Information”). Confidential Information includes any information that is clearly identified in writing as confidential at the time of disclosure, and any written or oral information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. Such Confidential Information includes, but is not limited to, Customer Data, Personalized Content, product proposals, technological processes. Each party agrees that it shall use Confidential Information solely in accordance with the provisions of this Agreement and will not disclose, or permit to be disclosed, the same, directly or indirectly, to any third party without the other party's prior written consent, provided however that neither party bears any responsibility for safeguarding information that (i) is publicly available, (ii) already in the other party's possession and not subject to a confidentiality obligation, (iii) obtained by the other party from third parties without restrictions on disclosure, (iv) independently developed by the other party without reference to Confidential Information, or (v) required to be disclosed by order of a court or other governmental entity.
5.3 Security. As part of the Services, Agfa Graphics shall implement reasonable security measures consistent with industry standards to protect Personalized Content from unauthorized access, and, in any event, in a manner at least as protective as Agfa Graphics uses to protect its own information of a similar nature. Agfa Graphics shall not, under any circumstances, be liable for situations in which the security, stability, or availability of the Service is compromised by (i) You, (ii) by software, programs, data or other computer information, if any, provided to Agfa Graphics by You, or (iii) by actions Agfa Graphics undertakes at Your request.
5.4 Tracking. You agree that Agfa Graphics is entitled to monitor or have monitored and analyze or have analyzed the traffic and traffic patterns in connection with the Online Pitch Tool portal in general and Your Pitches in particular, for reason of a.o. improving the content, performance or use of the Online Pitch Tool portal, the Software or the Services.
6. TERM AND TERMINATION
6.1 Term. This Agreement will commence on the Effective Date and will continue for an undefined period of time, subject to termination in accordance with this Section 6.
6.2 Termination at Will. Either party may terminate this Agreement upon a one (1) months prior written notice to the other party. It is expressly understood and agreed that the termination rights of the parties are absolute and that the parties have considered the possibility of the making of expenditures in preparing for and in the performance of this Agreement and have considered the possibility of loss and damages resulting from the termination hereof. As a result, it is the express intent and agreement of the parties that neither of them shall be liable to the other for damages by reason of the non-renewal or termination of this Agreement, whether claimed as loss of goodwill, foregone profits, lost investments or otherwise.
6.3 Termination for Breach. Either party may promptly terminate this Agreement at any time upon default or breach of a material obligation or condition by the other party, such termination being effective upon notice of such termination.
6.4 Termination for Insolvency. This Agreement may be terminated by either party at any time if the other party goes into liquidation, voluntary or otherwise, or goes into bankruptcy or makes an assignment for the benefit of creditors or if a receiver is appointed of its property or of any material part thereof.
6.5 Effect of Termination. Upon termination of this Agreement for any reason, the Access and all associated rights and licenses granted to You hereunder will automatically terminate and You agree that Agfa Graphics may invalidate the Log-in ID’s allotted to You and/ or Users, and You agree to immediately cease all use of the Software and Services and destroy all copies, full or partial, of the Software and any information pertaining or relating thereto or any data stored with Agfa Graphics in connection therewith.
7. WARRANTIES; DISCLAIMERS
7.1 Your Warranties. You warrant and represent to Agfa Graphics that You have sufficient rights to the Personalized Content and in anything You post to the Online Pitch Tool portal, including but not limited to any necessary authorization, release, or clearance related to any rights of ownership, privacy, publicity, or intellectual property, and You will not provide Agfa Graphics with any Personalized Content or any other materials that: (i) infringe any third party’s proprietary rights; (ii) violate any law, statute, ordinance or regulation, including without limitation the laws and regulations governing export control and email/spam and laws governing content and data privacy.
7.2 Disclaimer of Warranty. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9, EVERYTHING PROVIDED TO THE OTHER PARTY UNDER THIS AGREEMENT IS AS-IS AND BOTH PARTIES HEREBY DISCLAIM AND MAKE NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO REPRESENTATIONS, GUARANTEES, OR WARRANTIES OF MERCHANTABILITY, ACCURACY, QUALITY OF SERVICE OR RESULTS, AVAILABILITY, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR WARRANTIES OF ITS THIRD PARTY PROVIDERS. YOU ACKNOWLEDGE THAT AGFA GRAPHICS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. AGFA GRAPHICS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
8.1 Agfa Graphics’ Duty to Indemnify. Agfa Graphics represents it has no reason to believe that the Software infringes upon any copyright or any other intellectual property right of any third party. In the event of a claim against You that the Software infringes upon, or violates, a third party’s copyright Agfa Graphics will indemnify and hold You harmless against any action brought against You based on a claim that the Software, when used in accordance with this Agreement, infringes a copyright, patent or other proprietary rights, and Agfa Graphics shall pay all costs, settlements and damages finally awarded, except for consequential damages. If the Software is finally adjudged to so infringe, or in Agfa Graphics’ opinion is likely to become the subject of such a claim, Agfa Graphics shall, at its sole option expense, either (1) apply its commercially reasonable efforts to procure for You the right to continue using the Software, or (2) apply its commercially reasonable efforts to modify or replace the Software to make it non-infringing, or, if neither (1) or (2) is commercially practicable (3) terminate this Agreement. Agfa Graphics shall have no liability regarding any infringement claim arising out of: (i) use of other than a current, unaltered release of the Software; (ii) use of the Software in combination with non-Agfa Graphics software, data or equipment, if the infringement was caused by the use of such combination; (iii) any modification or derivation of the Software not specifically authorised in writing by Agfa Graphics; or (iv) use of third party software.
8.3 Conditions to Indemnification. However, neither party will be obligated to indemnify or hold the other party harmless from any such action unless this other party (i) notifies the indemnifying party in writing of any claim within 10 (ten) business days after it learns of such a claim, (ii) gives the indemnifying party sole control of the defense and settlement thereof, (iii) provides all reasonable assistance in connection with the defense and settlement thereof, and (iv) has not yet compromised or settled in any way any such losses, claims or damages for which indemnity is sought.
8.4 Sole and Exclusive Remedies. The foregoing states the parties’ entire liability and exclusive remedy with respect to infringement of any patent, copyright, trade secret or other proprietary right.
9. LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL AGFA GRAPHICS BE LIABLE FOR ANY COMMERCIAL LOSS, LOSS OF PROFITS, LOSS OF AN OPPORTUNITY, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH OR ARISING OUT OF THE FURNISHING, PERFORMANCE OR USE OF THE SOFTWARE OR SERVICES PERFORMED HEREUNDER, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE (BUT NOT GROSS NEGLIGENCE OR FRAUD), EVEN IF AGFA GRAPHICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, AGFA GRAPHICS WILL NOT BE LIABLE FOR ANY DAMAGES CAUSED BY DELAY IN DELIVERY OR FURNISHING THE SOFTWARE OR SAID SERVICES. AGFA GRAPHICS' LIABILITY UNDER THIS AGREEMENT FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL AND/OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, RESTITUTION, WILL NOT, IN ANY EVENT, EXCEED THE FEE PAID BY YOU TO AGFA GRAPHICS UNDER THIS AGREEMENT.
10. GENERAL PROVISIONS
10.1 Assignment. The parties agree that Agfa Graphics is hereby entitled to assign and/or transfer all or part of its rights and obligations under this Agreement to any third party, Affiliate, or other successor in interest, including without limitation, as a result of merger or consolidation, or in connection with the sale or transfer of all or substantially all of its business or assets to which this Agreement relates, or in connection with a corporate reorganization, or in connection with any other business purpose; provided that such assignee is bound by the applicable terms of this Agreement. You may not assign, voluntarily, by operation of law or otherwise, any rights or obligations under this Agreement without the prior, written consent of Agfa Graphics. Subject to the above restrictions on assignment, this Agreement shall inure to the benefit of and bind the successors and assigns of the Parties. Any attempted assignment in derogation of this Section 12.1 will be null and void.
10.2 Governing Law, Venue. This Agreement is made and performed in Belgium and shall be governed by and construed in accordance with the laws of Belgium, excluding its rules for choice of law, and the parties hereby irrevocably submit to the exclusive jurisdiction of the Belgian courts to settle any disputes which may arise out of or in connection with this Agreement and cannot be settled amicably. Agfa Graphics however reserves itself the right, in all cases, to take legal action at Your then current venue.
10.3 Force Majeure. Neither Party shall be liable for any default or delay in the performance of its obligations under this Agreement (except for any payment obligations) if such default or delay results from causes beyond its reasonable control, including but not limited to power outages or failures of third party service providers.
10.4 Notice. Agfa Graphics may give notice to You by means of a general notice on the online reporting interface(s) for the Software and/or Services and notices specific to You by electronic mail to Your e-mail address on record in Agfa Graphics’ account information or by written communication sent by first class mail or pre-paid post to Your address on record in Agfa Graphics’ account information.
10.5 Right To Monitor. Agfa Graphics shall have the right upon its expense to inspect and monitor compliance of You with this Agreement.
10.6 Severability. If any provision, or part of any provision. of this Agreement is invalidated by operation of law or otherwise, that provision or part will to that extent be deemed omitted and the remainder of this Agreement, or applicable attachment, will remain in full force and effect. In place of any such invalid provision or part thereof, the parties hereto undertake to agree on a similar but valid provision the effect of which is as close as possible to that of the invalid provision or part thereof. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
10.7 Waiver. Any waiver of the provisions of this Agreement or of a party's rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party's rights under this Agreement and will not in any affect the validity of the whole or any part of this Agreement or prejudice such party's right to take subsequent action. Except as expressly stated in this Agreement, no exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.
10.8 Advice of Counsel. The parties hereto have exchanged detailed and extensive information regarding the subject matter of this Agreement, which they consider to be sufficient and satisfactory, and they have all taken part on an equal basis in the negotiation and drafting of this Agreement. This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party.
10.9 Standard Terms of You. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that You may use in connection with the licensing of the Software will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Agfa Graphics to object to such terms, provisions or conditions.