End-User Services Agreement (“EUSA”) for Episerver Digital Experience Cloud™

 

PLEASE READ THROUGH THE TERMS AND CONDITIONS FOR THE EPISERVER DIGITAL EXPERIENCE CLOUD BELOW BEFORE THE CUSTOMER USE SUBSCRIPTION SERVICE(S), SOFTWARE(S), LINKED PAGES, CONTENT, PRODUCTS, ONLINE AND OFFLINE COMPONENTS (“SOFTWARE SERVICE(S)”) IDENTIFIED IN ONE OR MORE ORDERING DOCUMENTS, INCLUDING, BUT NOT LIMITED TO, MASTER SERVICES AGREEMENT(S) (“MSA”) OR ORDER(S) (“ORDER(S)”).  BY ACCEPTING, SIGNING (DIGITALLY OR OTHERWISE), OR IN ANY WAY AFFIRMING THE MSA OR ORDER, OR BY INTERACTING OR IN ANY OTHER WAY USING THE SERVICE(S)) OR ANY COMPONENT OFFERED BY EPISERVER, CUSTOMER ACCEPTS THE TERMS AND CONDITIONS BELOW, THAT THE AGREEMENT, INCLUDING ALL ORDERS, BECOMES A BINDING OBLIGATION ON THE CUSTOMER AND THAT THE CUSTOMER HAS AGREED THAT THESE TERMS AND CONDITIONS (COLLECTIVELY REFERRED TO AS THE “AGREEMENT”), IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL OTHER PROPOSALS AND PRIOR AGREEMENTS, ORAL OR WRITTEN, BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREIN.  In the event of a conflict between the EUSA and Order(s), the Order(s) shall control. All capitalized terms not defined herein shall have the meanings attributed in the Order(s).

1.               Right to Use the Service

1.1            During the Subscription Term set forth in an Order, Episerver grants to Customer a non-transferable, non-exclusive, worldwide right to permit those individuals authorized by Customer or on Customer's behalf, and who are Customer's employees, Affiliates or Episerver-approved contractors ("Users"), to access and use the Software Services subject to the terms of the Agreement.

1.2            Each Order defines specific usage rights (“Usage Rights”) for each Service, and Customer shall at all times ensure that its use does not exceed its Usage Rights, unless the Usage Rights have accompanying overage terms, which include pricing, payment, duties and additional terms (“Overage Terms”) should Customer exceed its Usage Rights. Each Service within the MSA and Order(s) has, including but not limited to, the price of each Service, Usage Rights, Overage Terms (and pricing therein) and the availability level of the Service (“SLA”).

1.3            The Software Services are provided by Episerver from data center facilities to which Users have remote access via the Internet in conjunction with certain online and offline components provided by Episerver hereunder. Customer shall be solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Software Services, including, without limitation, computers, computer operating system and web browsers (collectively, "Equipment"). Customer shall ensure that the Equipment complies with all configurations and specifications set forth in Episerver published documentation.

2.               Restrictions and Representations

2.1            Except as expressly authorized in the Agreement, explicit contract bound permission given by Episerver, or to the extent expressly permitted by applicable law, Customer shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Software Services or any software, documentation or data related to or provided by Episerver as part of the Software Services (“Software”), or provided by Episerver but not created or owned by Episerver ("Other Software"); (ii) modify, translate, or create derivative works based on the Software Services, Software or Other Software; or copy (except for archival or Episerver-authorized purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Software Services, Software or Other Software; (iii) use or access the Software Services to build or support, and/or assist a third-party in building or supporting, products or services competitive to Episerver; or (iv) remove any proprietary notices or labels from the Software Services, Software or Other Software. Customer shall use the Software Services, Software and Other Software only for its own internal business operations (including, but not limited to development, support and launching of public-facing websites), and not for the operation of a service bureau or timesharing service.  Any violation of this clause shall result in immediate revocation of any associated Software Services within the MSA or Order(s). Customer may request permission from Episerver to decompile the specific portions of Software for purposes of fault analysis, integration planning and other internal business purposes, such permission to be expressly granted by Episerver in writing and at its sole discretion.

2.2            Customer shall not knowingly or willfully use the Software Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Episerver's provision or support of the Software Services. Customer shall be responsible for maintaining the security of the Equipment and Customer's account access passwords. Episerver and Customer agree to make every reasonable effort to prevent unauthorized third-parties from accessing the Software Services. Customer shall be held with joint and several liability for all acts and omissions of its Users.

2.3            Customer represents and warrants that Customer will use the Software Services only in compliance with Episerver's Fair Use Policies found in Section 17 of this EUSA (as may be amended from time to time upon written notice to Customer), and all applicable (i) social networking sites’ terms and conditions associated with its procurement and use of any Customer Data; and (ii) laws and regulations, including those related to spamming, privacy, data protection, intellectual property, consumer and child protection, pornography, obscenity or defamation.

2.4            Episerver may immediately suspend Customer's password, account, and access to the Software Services if (i) Customer fails to make payment due within ten (10) business days after Episerver has provided Customer with final notice of such failure or (ii) Customer violates Section 1.1, 2, 3 or 8 of this EUSA. Any suspension by Episerver of the Software Services under the preceding sentence shall not relieve Customer of its payment obligations under the Agreement.

3.               Ownership and Intellectual Property Rights

3.1            Episerver shall have sole and exclusive ownership of all right, title and interest in and to the Software Services and Software, documentation, all copies, improvements, and derivative works thereof (regardless of form, access or distribution medium in or on which the original and other copies may exist), including all copyright, trademark, patent, trade secret, know-how and other intellectual property rights pertaining thereto, subject solely to the limited right and Software Services expressly granted to Customer herein. Software, owned by Episerver, is protected by Swedish, United States and international copyright and intellectual property legislations. Episerver shall retain all rights to its name and trademarks.

3.2            With regard to Other Software, including but not limited to Applied Software (as defined in Section 9.1) or Third-Party Software, included in Software Service(s) or Order(s) all mentioned rights in this Section 3 shall be owned by the third-party from whom Episerver has acquired the right to use the Other Software, including but not limited to Applied or Third-Party Software, subject solely to the limited right, service and/or license expressly granted to Customer herein. The structure and code of the Episerver Software are valuable trade secrets of Episerver and remain the sole property of Episerver or, respectively the third-party who owns the Other Software, including but not limited to Applied Software or Third-Party Software.

3.3            The providing of Software Services and/or the entering into the Order(s) is not a sale of the Software or any updates or new releases, or any copy thereof. Except for the limited Software Services granted under the Agreement, the Customer obtains no other rights in or to the Software Services, Software or Other Software. There are no implied licenses or services under the Agreement and Episerver reserves any rights not expressly granted to Customer under this Agreement.  This Section 3 shall survive termination of this Agreement.

3.4            Customer owns any data, information or material originated by Customer that Customer submits, collects or provides in the course of using the Software Services, including but not limited to any data or information stored via, on, and/or through the Software Services, and information regarding Customer’s social networking interactions or other contacts activated through use of the Software Services ("Customer Data"). Episerver has no ownership rights in or to Customer Data. Customer shall be solely responsible for the accuracy, quality, content and legality of Customer Data, the means by which Customer Data is acquired and the transfer of Customer Data outside of the Software Services, thus Episerver is consequently not responsible for any damages or claims that have arisen as a consequence of the Customer Data, or faults in use.  Episerver is not liable for damages when such damages arise as any part of an infringement claim against Customer Data.  Customer Data shall be deemed to be Customer Confidential Information pursuant to Section 10 below.

4.               Fees, Billing and Payment

4.1            The Customer shall pay Episerver all fees stipulated and set forth in the MSA and Order(s). All fees are non-cancelable and nonrefundable, except as expressly specified in the Agreement. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding taxes based on Episerver's income), even if such amounts are not listed in the MSA or Order(s). Customer shall pay all fees in the currency as agreed to in the MSA and Order(s). 

4.2            Customer must complete Section 1 of the MSA to inform Episerver if a purchase order will or will not be issued.  Customer must provide Episerver an accurate purchase order number.

4.3            If Customer exceeds the Usage Rights for the ordered Software Services, Episerver has the right to immediately charge the Customer, and Customer will pay, in accordance with the Overage Terms within the MSA or Order(s). Retroactive debiting may also take place.

4.4            The Customer has a right to take notice of such log files that show the Customer’s consumption of Software Services and other statistics that the charging is based on. Such log files are saved by Episerver for sixty (60) days after the issue date of the invoice.

5.               Term and Termination

5.1            The Agreement shall commence as of the earlier Effective Date set forth in MSA and/or the first Order and, unless earlier terminated as set forth below, shall remain in effect through the end of the Initial Subscription Term or Subscription Term in any current Order. All sections of the Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.

5.2            In the event of a material breach by either Party, the non-breaching Party shall have the right to terminate the MSA or applicable Order(s) for cause if such breach has not been cured within thirty (30) days of written notice from the non-breaching Party specifying the breach in detail. If Episerver terminates the MSA or an Order for Customer's material breach, all fees set forth on such MSA and/or Order(s) are immediately due and payable.

5.3            Upon any termination or expiration of the MSA or Order(s), Customer's right to access and use the Software Services covered by that MSA and/or Order(s) shall terminate. Notwithstanding the foregoing, at Customer's request if received within thirty (30) days of termination, Episerver will permit Customer to access the Software Services solely to the extent necessary for Customer to retrieve a file of Customer Data then in Episerver's possession. Customer acknowledges and agrees that Episerver has no obligation to retain Customer Data and that Episerver will irretrievably delete and destroy Customer Data after thirty (30) days following the termination of the MSA or Order(s).

5.4            If Episerver, by any reason, no longer has the necessary licenses for the Implemented Software or the Applied Software / Service, Episerver shall within reasonable time and with reasonable effort provide a substitute for such components.  If no such substitute may be found, Episerver may, at its own option, terminate this Agreement and refund any prepaid, unused fees to Customer.

5.5            Premature termination by Episerver. Episerver has the right to immediately terminate the Agreement prematurely if:

5.5.1         Customer acts in breach of the requirements that are stated in Section 9 and 10 or otherwise has been agreed and Customer has not, within thirty (30) days after written request thereof, taken corrective measures;

5.5.2         Customer abuses the resources or without authorization seeks access to Episerver’s system, which is not intended for Customer;

5.5.3         Customer is delayed with the payment of an overdue undisputed fee, and has not within twenty (20) days after the final reminder of request for payment, paid the fee;

5.5.4         Customer, in any other way, significantly breaches its obligations according to the Agreement and Customer has not, within thirty (30) days after written request thereof, taken corrective measures;

5.5.5         Customer has been declared bankrupt or otherwise is insolvent.

5.6            Episerver does not have the right to prematurely terminate the Agreement if Customer’s negligence is of minor significance or if Episerver has granted a written respite of payment.

5.7            Premature termination by Customer. Customer has the right to, in writing, terminate the Agreement prematurely if

5.7.1         Episerver significantly breaches its obligations in the Agreement and Episerver has not taken corrective measures within thirty (30) days after a written request thereof;

5.7.2         Episerver is declared bankrupt or otherwise is insolvent.

6.               Representations, Disclaimer of Warranties, Indemnities, Limitations of Liability

6.1            Episerver Responsibilities

6.1.1         Episerver warrants that it will use its commercially reasonable efforts to ensure Software Services will perform substantially in accordance with the documentation supplied by Episerver with the Software Services and consistent with generally accepted industry standards. Episerver’s sole and exclusive obligation for breach of this limited warranty shall be to use commercially reasonable efforts to remedy or supply a temporary fix, or make an emergency bypass. To the extent Episerver cannot perform its obligations according to the forgoing sentence Episerver maximum liability to Customer per contractual year shall, under all circumstances, shall be an amount corresponding to twelve (12) months fees for the Software Services, which is/are affected by the failure of Episerver’s obligations.  This limited warranty shall not be valid if the Software Services was subjected to abuse, misuse, accident, alteration or unauthorized modification or installation by Customer.  Other than this limited warranty, the Software Services and related software is provided AS IS.

6.1.2         Episerver does not exercise any control of information or material displayed through Customer’s use of Software Services and Episerver is consequently not responsible for damages that have arisen as a consequence of Customer’s actions or faults in Customer’s applications. Episerver is not liable for damages arising in connection with an infringement claim in Customer’s use of Software Services.

6.1.3         Episerver handles all information about the Customer as Confidential Information in order to safeguard the integrity of the Customer. However, Episerver may be ordered via court order, or subpoena through government authority or legislation, to release Confidential Information, including but not limited to Customer Data, provided that Episerver notifies Customer promptly upon receipt thereof, unless such notice is prohibited by law.  Episerver will cooperate with Customer’s efforts to limit, quash or defeat any court order or subpoena at Customer’s expense.

6.1.4         Episerver undertakes to repair any operational defects that affects the Software Services, at its own cost, to the extent that such defect can be repaired. Except as stated in the SLA, Episerver does not give any guarantees or other commitments including but not limited to, for a) within what time the repair of the defect shall start or b) within what time the defect shall be repaired.

6.1.5         If the Customer has not been able to use the Software Services due to a defect, the reduction of the monthly fee will apply in accordance with the SLA, which unless otherwise stated, shall be Customer’s sole remedy for the subject defect.

6.1.6         Episerver’s responsibility does not cover defects due to the Customer’s customizations of Software Service(s), Software, Other Software, external service(s), defects in Customer’s equipment, or operation stoppage according to this Section 6, the SLA or defects in third-party products or services.

6.1.7         Episerver has the responsibility and right roll back Customer’s image, and in extreme circumstances deny operation or interrupt supply of the Software Services, if the Customer’s installation negatively affects the operating environment of other Episerver customer(s).  The negative effects may arise from, but is not limited to, components used for Customer web site(s), adjustments of Episerver Software done by or on behalf of Customer, third-party products used, services or any equipment not supplied by Episerver.

6.1.8         Episerver has the responsibility for labor and resources required for upgrading Software that are included in the Software Services, at no additional cost to Customer. However, if an upgrade to a new version of Software is done, Customer bears the responsibility and costs for carrying out any changes (including but not limited to all customizations, edits, Customer Data, changes and custom development) not provisioned by Episerver that are necessary.

6.1.9         Episerver has the right to keep logs of the use of the Software Services to the extent it is allowed according to applicable legislation, and such logs shall be treated as Confidential Information. 

6.2            Customer Responsibilities

6.2.1         Customer shall report any defects with the Software Service to Episerver as soon as possible after such defect is discovered.

6.2.2         Customer is responsible that all the information or material that has been transferred or in any other way handled within the Software Services does not constitute an infringement of the right of a third-party or in any other way is in conflict with applicable legislation or Episerver’s Publishing Rules. Customer is fully responsible for all the actions they perform through use of the Software Services. Customer shall hold Episerver free from loss for any demands directed at Episerver by a third-party as a consequence of the information that Customer is responsible for. This continues to apply even if Episerver has terminated the Agreement with Customer due to a breach of this provision.

6.2.3         Before Software Services are provided, Customer shall hold and accept any required license agreement(s) for all other, third-party or otherwise, software, components, services, and code Customer wishes to use with the Software Services that are not provided by Episerver. Customer is responsible to ensure that such other, third-party or otherwise, license/service agreements allow Episerver to carry out Software Services operations, and that Customer and Software Services used by Customer are not in breach of such license/service agreements nor infringing on intellectual property rights of a third-party.  In such case, Customer shall indemnify Episerver from potential infringements in another’s right, third-party or otherwise, to such software.  Excluded from this Section are any service(s) or license(s) specified within the MSA and/or Order(s).

6.2.4         Customer owns and is responsible for any data and information Users insert, upload, download, generate, capture, relay or in any way transmit or store, on, through use or as a result of the Service and consequently assumes liability and any damages that arise as a consequence.

6.2.5         Customer is responsible for User alterations made in the Software Services (including the Customer’s customizations of Software and/or Software Services). If, at Customer’s request, Episerver carries out support for User alterations of the Software Service(s), Customer will be invoiced and responsible for payment of such support.

6.2.6         Customer may elect, with written notice, to not have Episerver upgrade Software Services.  Episerver has the right to carry out upgrades, despite written notice, if significant circumstances, such as security breaches, lack of stability or other Software Services-impeding conditions affect the Software Services or other customers.

6.2.7         Customer is responsible for damages that arise if Customer is affected by hacking caused by Customer’s negligence.  Customer shall ensure that distributed security measures, including but not limited to passwords, identities, and access privileges both physical and virtual, are used and stored in a safe and secure manner consistent with industry standards. 

6.2.8         If Customer sends out Spam, Software Services may be suspended immediately. Compensation in accordance with the SLA will not be paid in such case.

6.2.9         Customer may not re-sell the whole or parts of the Software Services to a third-party without the approval of Episerver.

6.2.10      Customer is responsible for keeping its contact information up to date with Episerver. Any changes shall require written notice given to Episerver.

6.3            No warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, EPISERVER AND ITS THIRD-PARTY PROVIDERS HEREBY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SOFTWARE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, INTEGRATION, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. EPISERVER AND ITS THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SOFTWARE SERVICES OR THE RESULTS CUSTOMER MAY OBTAIN BY USING THE SOFTWARE SERVICES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, EPISERVER AND ITS THIRD-PARTY PROVIDERS DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE SOFTWARE SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE; OR (B) THE QUALITY OF THE SOFTWARE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS. CUSTOMER ACKNOWLEDGES THAT NEITHER EPISERVER NOR ITS THIRD-PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SOFTWARE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. EPISERVER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY EPISERVER, THE SOFTWARE SERVICES ARE PROVIDED TO CUSTOMER ON AN "AS IS" BASIS.

6.4            Limitation of Liability. NEITHER PARTY SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE, INACCURACY OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS, PROFITS OR REVENUE; (B) FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND ITS REASONABLE CONTROL (including, without limitation, acts of God, acts of Government or other competent regulatory authority, telecommunications network operators, war or national emergency, riots, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes and other industrial disputes (in each case, whether or not relating to that Party’s workforce)), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER IN THE PRECEEDING TWELVE (12) MONTHS.

6.5            Infringement. Notwithstanding any of the aforementioned Section 6 and except in the event Customer is in material breach of this Agreement, Episerver shall indemnify, defend and hold Customer harmless (including Customer’s officers, director, agents, representatives and employees) from: any direct claim, direct liability, direct loss, direct expense or demand, including reasonable legal fees and direct costs and including without limitation third-party claims based on infringement caused solely by the Software owned by Episerver. This indemnity requires that Episerver receive notice immediately of any third-party claims and is in sole control of the defense of such claim, including but not limited to any settlement arrangement.

7.               Transfer 

7.1            Customer shall not assign or transfer the Agreement without Episerver’s prior written consent, and such consent shall not be unreasonably withheld. 

7.2            Episerver has the right to transfer the Agreement to a third party without Customer’s approval, so long as the third party can fulfil all Agreement obligations and Episerver gives notice at least ninety (90) days prior to such transfer. Should Episerver transfer the Agreement to a non-acquiring third party which causes Customer undue burden, Customer has the right to terminate the Agreement prematurely within ninety (90) days after the transfer and upon such termination, any pre-paid, unused fees shall be returned.

7.3            Either Party may assign all or part of its rights under the Agreement to an affiliate or to any entity that succeeds to or acquires all or substantially all of the business or assets of such Party through merger, consolidation, or acquisition of stock or assets. This Agreement is binding on any permitted assignees or transferees.

8.               Additional Terms

8.1            Service Level Agreement (“SLA”). Episerver undertakes to keep the Software Services available in accordance with the agreed SLA that has been set forth in the Order(s). Availability level for the Software Services is set forth as a percentage of up time [e.g. 99.5%], times/hours the Software Services shall be available to access [e.g. All days, 06.00 am - 10.00 pm GMT +1]. The availability shall be calculated per calendar month and shall amount to at least the set percentage during the times when the Software Services shall be accessible.

8.2            Episerver Publishing Rules. Material published on the Software Services must not be conceived as offensive, abusive, radical or in any other way be in conflict with common values or be of pornographic nature. Customer may not use the Software Services to carry out unsolicited mass e-mail ("Spam"). A recipient of ordered mass e-mail shall be able to cancel future e-mail.  An unsubscribe function must be included in every e-mail.  If material in the Software Services is discovered that is in conflict with United States, Swedish or international law (e.g. United States CAN-SPAM Act of 2003) or Episerver’s Publishing Rules, Episerver has the right to immediately suspend the Software Service(s) until the prohibited material has been removed. Episerver also has the right to terminate the Agreement in accordance with Section 5.5. In case of such termination, the Customer’s responsibilities in accordance with Section 6.2.2 remain in force. Compensation according to Section 6.1.1 or SLA is excluded in such case(s).

8.3            Statistical Information. Notwithstanding anything else in the Agreement or otherwise, Episerver may monitor Customer’s use of the Software Services and use Customer Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Software Services, and may make such information publicly available, provided that such information does not incorporate Customer Data and/or identify Customer's Confidential Information. Episerver retains all intellectual property rights in such statistical and performance information.

8.4            Privacy and Data Protection. Parties shall be knowledgeable about and at all times compliant with all privacy and data protection laws applicable to its location and operations, such as, by way of example, the European Union Data Protection Directive and member state implementations thereof.

9.               Other Software and Services

9.1            Applied Software / Services.  Customer’s Software Services may include software, services, components, products, and/or code that are considered to be a part of the Software Service, however constructed by a third-party ("Applied Software / Services"). The possible Applied Software / Service distributed with Software Services are defined within the MSA and Order(s).  In addition to Customer’s restriction to not hire out, lease, lend, assign, sublicense, distribute (electronically or otherwise), resell, sell, create any derivative works of, or otherwise transfer all or any portion of the Applied Software / Service to a third-party, Episerver is not permitted to give said authorization to a third-party with respect to the Applied Software / Service.

9.2            Third-Party Open Software. Software Services may include distributions of open source software, components, products, and/or code that are delivered with Software Services, which are constructed by a third-party ("Third-Party Open Software").  Possible Third-Party Open Software(s) distributed with Software Service have been made available at http://www.episerver.com/implemented_software; Customer has taken notice of Third-Party Open Software agreements and hereby accepts the terms and conditions of these license agreements, and when applicable, binding to the Customer.  As between Episerver and the Customer, Section [TERMINATION] [LIMITED LIABILITY] and [OTHER SOFTWARE AND SERVICES] shall also apply with respect to the Third-Party Open Software, unless the license(s) explicitly states otherwise.

9.3            Acquisition of Non-Episerver products, software and services. Episerver or third-parties may make available (for example, through the Add-On Store or otherwise) third-party products or services, including, for example, Non-Episerver applications, components, functionality and other services. Any acquisition by Customer of such Non-Episerver products or services, and any exchange of data between Customer and any Non-Episerver provider, is solely between Customer and the applicable Non-Episerver provider.  Episerver does not warrant, support and in no way liable or responsible for Non-Episerver applications, products, services or providers, whether or not they are designated by Episerver as “verified” or otherwise, except as specified in the MSA or Order(s).

9.4            Non-Episerver Applications and Customer Data. If Customer installs or enables a Non-Episerver application for use with Software Services, Customer grants Episerver permission to allow the provider of that Non-Episerver application to access Customer Data as required for the interoperation of that Non-Episerver application with the Software Services.  Episerver is not responsible for any disclosure, modification or deletion of Customer Data, or data privacy or protection violations resulting from access by a Non-Episerver application(s).

9.5            Integration with Non-Episerver Applications. Software Services may contain features designed to interoperate with Non-Episerver applications. To use such features, Customer may be required to obtain access to Non-Episerver applications from their providers, and may be required to grant Episerver access to Customer’s account(s) on the Non-Episerver applications. If the provider of a Non-Episerver application ceases to make the Non-Episerver application available for interoperation with the corresponding Software Services features on reasonable terms, Episerver may cease providing those Software Services or features without entitling Customer to any refund, credit, or other compensation.

10.            Confidential Information

10.1          Confidential Information. Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's business (hereinafter referred to as "Confidential Information" of the Disclosing Party). Such information includes, without limitation, Customer Data, information related to Customer's login identifiers and credentials for Accounts, the nature and performance of Customer's marketing programs, and anything considered a business secret. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted in Section 10 below) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of the Agreement or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by its prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third-party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required by law. Customer Data will be destroyed as set forth in Section 5.3, and, upon Customer’s request, Episerver shall certify to such destruction in writing.  The content of the Agreement or judicial award following the Agreement or information regarding negotiations, judicial proceedings or mediation following the Agreement shall also be Confidential Information.

11.            Disputes, Venue, Governing Law and Jurisdiction

11.1          General. Governing Law and Jurisdiction depend on where Customer is domiciled. In all cases, the Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the Uniform Computer Information Transactions Act (as enacted in any jurisdiction), or the conflict of law rules of any jurisdiction, the application of which is expressly excluded.

11.2          Alternative Dispute Resolution. Parties agree that any and all disputes, claims or controversies arising out of or related to this Agreement, including any claims under any statute or regulation, but excluding for any such disputes, claims or controversies arising out of Episerver’s intellectual property rights for which a provisional remedy or equitable relief is sought ("Disputes"), shall be submitted first to non-binding mediation. If the Disputes are not resolved through mediation within sixty (60) days, then, upon the election of either Party, the Disputes shall be submitted to the courts in the Jurisdiction and under the Governing Law described below.

11.3          Governing Law and Jurisdiction. Governing Law shall be the respective law indicated below, based on the domicile of Customer.  Each Party to the Agreement consents to personal and exclusive jurisdiction for any equitable or other action sought in the location indicated below, based on the domicile of Customer. Each Party will bear its own costs with respect to any disputes arising under this Agreement, except where such disputes arise from unpaid fees to Episerver, where Customer shall bear all reasonable legal and administrative costs required to collect such unpaid fees.                 

If Customer is Domiciled in:

Governing Law:

Jurisdiction:

United States of America, Canada, Mexico or any country in Central or South America or the Caribbean

New Hampshire and controlling U.S. Federal Law.

U.S. District Court in New Hampshire or any court of the State of New Hampshire having subject matter jurisdiction.

United Kingdom (including England, Northern Ireland, Scotland and Wales), Ireland, Australia and New Zealand

Laws of England and Wales

Competent courts of London, England

Rest of the World

Laws of Sweden

Competent courts of Stockholm, Sweden.

English will be the language used.        

 

12.            Force majeure

12.1          The Parties are released from liability for sanctions due to omission to fulfil a certain obligation according to the Agreement, if the omission is due to circumstances (“relieving circumstance”), which are outside the control of respective Party and which prevent the fulfilment of the obligation. As soon as the obstacle is removed, the obligation shall be fulfilled in the agreed way. As relieving circumstance will be war, action of war, authority’s act or omission, newly added or changed legislation, conflict in the labor market, DOS-attacks (Denial of Service), defect or delay in services provided by sub distributors and therewith equal circumstances.

12.2          If a Party desires an exemption according to Section 12.1, the requesting Party shall, without delay, give such notice to the other Party.

12.3          Notwithstanding the foregoing, the Parties have a right to immediately terminate the Agreement if the fulfilment of a certain obligation is delayed more than two (2) months.

13.            Changes of terms and conditions

13.1          The EUSA is in force until further notice. The Customer will be notified at least ninety (90) days before any significant changes of these terms and conditions as well as any price adjustment comes into force. Episerver has the right to notify Customer of such new terms and conditions as well as adjustments thereto, via the Customer indicated contact person’s email, fax or in any other way that Episerver finds suitable.

14.            Notice

14.1          Manner of Giving Notice. Except as otherwise specified in the Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to the Customer shall be addressed to the relevant billing contact designated by the Customer. All other notices to the Customer shall be addressed to the relevant Software Services system administrator designated by the Customer.

15.            Third-Party Beneficiaries

15.1          The Agreement is for the sole benefit of the Parties hereto and their successors and permitted assigns and nothing herein express or implied shall give or be construed to give any person other than the Parties hereto any legal or equitable rights hereunder.

16.            General Provisions

16.1          The Agreement, including all Order(s), EUSA and EULA (if any on-premises software used) represent the Parties' entire understanding relating to the Software Services, and supersede any prior or contemporaneous, conflicting or additional communications. The exchange of a fully executed Order(s) by fax or electronic signature shall be sufficient to bind the Parties to the Terms and Conditions of the Agreement and such Order. Unless expressly granted, the Agreement may be amended only by written agreement signed by the Parties. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.

16.2          No joint venture, partnership, employment, or agency relationship exists between Episerver and Customer as a result of the Agreement or use of the Software Services.

16.3          Audit.  Episerver has the right to audit Customer’s use of Software Services, as well as installation and use of Software. Customer shall comply with all reasonable requests for audit assistance.  In the event that Episerver determines that Customer has underpaid any payment due under any agreements between the Parties, including but not limited to the Agreement or Order(s), Episerver shall notify Customer in writing of this alleged discrepancy. Any undisputed underpayment by Customer shall be paid to Episerver (and unless explicitly agreed in writing between the Parties, plus interest at the lessor of one and half (1.5%) percent per month or the highest rate permitted by law), within thirty (30) Calendar Days of such determination.

16.4          United States (“U.S.”) Government End-User Notice.  The Software, and Software Services, is a “Commercial Item”, as that term is defined in as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202, as applicable.  Consistent with 48 C.F.R. §§ 12.212, 227.7202-1 through 227,7202-4, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end-users (a) only as Commercial Items and (b) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein.

16.5          Export Compliance. Software Services, Software, and other technology Episerver makes available, and derivatives thereof may be subject to export laws and regulations of the United States, European Union (“E.U.”) and other jurisdictions. Each Party represents that it is not named on any U.S. government or EU denied-party list. Customer shall not permit Users to access or use Software Services or Software in a U.S. or E.U. embargoed country or in violation of any U.S. or E.U. export law or regulation.

17.            Episerver Fair Use Policy

17.1          General Fair Use Policies

17.1.1      Customer agrees that under no circumstances, shall Customer share, resell, reuse, or in any way make the Software Services available to third-parties, except as explicated stated within the Order(s) or the Agreement.

17.1.2      Use of Information. Episerver may use the computer information, error reports, malware reports and URL filtering reports to improve its Software Services. Episerver may also share it with others, such as hardware and software vendors. Both may use the information to improve how their products and services run with Episerver Software Services.

17.1.3      The Customer may not:

17.1.3.1   Use the Software Services in a way that is prohibited by any law, regulation or governmental order or decree in any relevant jurisdiction, or that violates others’ legal rights including without limitation those related to privacy and electronic communications;

17.1.3.2   Use Software Services in a way that could harm it or impair anyone else’s use of it;

17.1.3.3   Use Software Services to try to gain unauthorized access to any service, data, account or network by any means, including but not limited to falsifying any protocol or header information (e.g., “spoofing”);

17.1.3.4   Use the Software Services to send “spam” (i.e., unsolicited bulk or commercial messages) or otherwise make available any offering designed to violate these terms (e.g., denial of service attacks, etc.);

17.1.3.5   Remove, modify, or tamper with any regulatory or legal notice or link that is incorporated into the Software Service.

 

Version 2016-08-15. Copyright Episerver 2016, All Rights Reserved.