IF YOU DO NOT AGREE WITH ANY TERM OR CONDITION SET FORTH IN THIS AGREEMENT, YOU SHOULD NOT USE OUR SERVICES OR PRODUCTS.
You may not access the Service for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. Any use of the Service is permitted only in accordance with the terms and conditions set forth in this Agreement.
“CASTOR” means Castor Technologies Ltd.
“Documentation” means Our online user guides, documentation, policies and help and training materials, as may be provided or updated from time to time by Us, and/or any information provided to you by Us hereunder, through our website or otherwise from time to time.
“Intellectual Property Rights” means any patent, copyright, rights in Trademarks, trade secret rights, moral rights and other intellectual property rights or other proprietary rights arising under the laws of any jurisdiction.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means an ordering document specifying the Service to be provided hereunder that is entered into between You and Us, if any, including any amendment, addendum and supplements thereto.
“Service” means any product and/or service made available by Us, including any deliverables provided by Us in the framework of the Service and/or product of the Service and/or any intermediate outcome created by Us.
“Trademarks” shall mean any trademarks, service marks, trade dress, trade names, corporate names, proprietary logos or indicia, designs and other source or business identifiers.
“Service Trademarks” means Our and Our licensors’ Trademarks including any Trademark included or otherwise related to the Service.
“User” means an individual who uses the Service on Your behalf. It is clarified that You are responsible for any acts or omission of the Users as if they were Your acts and omissions hereunder and that only Your employees and integral consultants can be authorized to use the Service on Your behalf (without derogation from other limitation set forth in this Agreement). Any User represents and warrants that he/she is permitted and authorized to act on Your behalf.
"We," "Us" or "Our" means Evonik Resource Efficiency GmbH which has a license granted to it by CASTOR for the purpose of providing You with the Service; You are advised that CASTOR has certain rights in respect to You as set forth in this Agreement as if it was a party to this Agreement, including sending You and Your users promotions as specified below.
"You" or "Your" means the corporation for which you are accepting this Agreement.
“Your Data” means electronic data and information submitted by or for You throughout the use of the Service or collected and/or processed by Us throughout Your use of the Service.
2. USE OF SERVICES
2.1 Subscriptions. Our Service should be retained only by businesses corporations (B2B). Furthermore, the Service are purchased as subscriptions for specific quantities of model quotes, and feature sets.
2.2 Usage Limits. Service may be subject to usage limits, including, for example, the quantities specified in an Order Form or on Our website or on the Service platform. Unless otherwise specified in the Order Form or on Our website, (a) a quantity specified in an Order Form or on Our website or on the Service platform refers to specific Quantities of model quotes, and, if so specified in the Order Form or on Our website, the Service may not be accessed by more than that number of Users specified thereunder, (b) a User’s password may not be shared with anyone else other than the individual User itself, and (c) a User identification may be reassigned to a new authorized individual replacing one who no longer requires ongoing use of the Service. If You exceed a contractual usage limit, then, without derogating from any right or remedy available to Us under any law, equity or contract, we may block your access to the Service. Compliance with contractual usage limits (such as the threshold of number of parts uploaded to the Services) shall be measured based on Our records.
2.3 Territory. We reserve the right to exclude any country from the Territory if at any time the laws of such country in Our reasonable judgment render Us and/or our licensors unable to protect Our and/or Our licensors’ Intellectual Property Rights in the Service or cause uncertainty in Our or Our licensors' ability to license and protect the rights in the Service. The rights granted to You in respect to the Service in any such country shall terminate upon receipt of written notice from Us. “Territory” means all countries of the world, excluding those countries where the Service is prohibited from being accessed, sent and/or used by applicable laws, regulations, orders or other restrictions, including, without limitation, those regarding import and export of computer software, technical data or derivative of such software or technical data, subject to following.
2.4 Your Responsibilities. You will (a) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (b) use commercially reasonable efforts to prevent unauthorized access to or use of Service, and notify Us promptly of any such unauthorized access or use, and (c) use Service only in accordance with the Documentation and applicable laws and regulations.
2.5 Usage Restrictions. You will not (a) make any Service available to, or use any Service for the benefit of anyone other than You and for Your internal business use only, unless otherwise explicitly agreed by Us in writing (b) sell, resell, license, sublicense, distribute, rent or lease any Service (unless otherwise explicitly agreed by Us in writing), or include a Service in a service bureau or outsourcing offering (c) use a Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (c) use a Service to store or transmit Malicious Code or introduce any virus, malicious software or any other Malicious Code to the Service or its related software, system and/or asset, (d) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (e) attempt to gain unauthorized access to a Service or its related systems or networks, (f) permit direct or indirect access to or use of any Service in a way that circumvents a contractual usage limit or payment methods or other restrictions set forth in this Agreement, (g) copy a Service or any part, feature, function or user interface thereof, (h) frame or mirror any part of any Service, (i) access a Service in order to build a competitive product or service, (j) de-compiling or reverse engineering the Service or any part thereof, (k) use any robot, spider, scraper or other automated means or other similar non-human programs in connection with the Service or hack or otherwise interfere or attempt to interfere with the proper working of the Service or any software, system and/or asset used in connection thereto, (l) provide Us (including through the Service) with any private or sensitive information pertaining to an individual, including such information which is protected under any privacy laws or regulations (except for necessary contact details of a User), (m) add to, remove, obstruct, conceal, change or deface any Trademark, logo or other commercial designation on or in connection with the Service. You further acknowledge and agree that in no event will You ever receive electronically, physically or otherwise, distributable copies of any software programs developed or licensed by Us under the Service.
3. FEES AND PAYMENT FOR SERVICES
3.1 Fees. You will pay all fees specified in the Order Forms, if any. Except as otherwise specified herein or in an Order Form, (i) fees are based on Service purchased and not on actual usage, (ii) payment obligations are non-cancelable and fees paid are non¬refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
3.2 Overdue Charges. If any invoiced amount, submitted to You in a timely manner, is not received by Us by the due date, then without limiting Our other rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 3.2 (Invoicing and Payment).
3.3 Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this Section 3.3, We will invoice You and You will pay that amount unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
4. PROPRIETARY RIGHTS AND LICENSES
4.1. Subject to the limitations and terms and conditions set forth in this Agreement, We hereby grant You a non-exclusive, non-transferable and timely limited license to use our Service, as a cloud hosted Software as Service (SaaS) based on Our offering (i.e. under the Order Form or as described on Our website), within the Territory, subject to the terms and conditions set forth in this Agreement. It is clarified that the license granted to You hereunder include Your right to use the deliverables provided to You through permitted use of the Service for your internal business purposes at your sole discretion, subject to the terms and conditions of this Agreement. Except as explicitly permitted herein, You shall not by Yourself or through any third party or otherwise permit any person or entity to use, disclose, copy, modify, amend or alter the Service or any part thereof.
4.2 Ownership. We and/or Our licensors shall retain all right, title and interest in and to the Service (including, for avoidance of doubt, the Service Trademarks and any insights (including if created through the use of electronic methods), knowledge, know-how, averaged data, aggregated data, benchmark, analytics and/or other usage data, generated throughout Your use of the Service or the use of Your Data (excluding, for avoidance of doubt, Your Data itself), and any other proprietary materials or information of Us or Our licensors (including Confidential Information) and any derivatives and/or modification thereof (collectively, the “Materials”). You acknowledge and agree that We, and/or Our licensors, hold the Intellectual Property Rights in the Materials and, except as expressly provided herein, You are not granted any other license to the Intellectual Property Rights in the Materials and it is clarified that You may NOT make any use of the Service Trademarks (unless You coordinate any such use with Us in advance and obtain Our explicit written approval for any such use). You agree to notify Us promptly in writing upon discovery of any unauthorized use or infringement of the Materials. Except as expressly provided herein, You shall retain all right, title and interest in and to Your Data.
4.3. License by You to use Your Data. You grant Us and/or CASTOR a worldwide, perpetual, irrevocable, unconditional, royalty-free and fully paid up license to host, copy, transmit, display and otherwise use (including as part of a machine learning dataset) and have hosted, copied, transmitted, displayed and otherwise used (including as part of a machine learning dataset) Your Data and any program code created by or for You using the Service or any other Confidential Information provided by You and to transfer the same to third parties engaged by Us, in particular to CASTOR, as required in order to provide You with the Service, provided, however, that We will provide third parties (other than CASTOR, such as service bureaus or alike) with your CAD files only to the extent that You permitted Us to do so (including via the Service platform). We and/or CASTOR may also use Your Data for Our and/or CASTOR'S internal purposes, such as for archive purposes and/or for furthering the Service and/or Our products, in particular 3D printing materials and/or CASTOR’s products and services in particular CASTOR’s decision support solution for utilizing industrial 3D printing that is generally available and released to CASTOR’s clients and related services (collectively, “CASTOR GA Service Platform”), on which the Service platform is based). Without derogation from the generality of the aforesaid, as part of the Service, We may convert and have converted CAD files uploaded to the Service or otherwise provided to Us by You into a different format. We may also correct and have corrected corrupted files uploaded to the Service platform in order to provide the Service. We may use and have used such converted and/or corrected files as part of the Service, including by providing service bureaus with such converted and/or corrected files and/or subject to Our sole discretion. We may allow You to download corrected files; provided, however, that in no event will We, Our licensors and/or Our and/or Our licensors’ business partners, be liable for the quality of the converted/corrected files and for any use of the same, including for the prints made based on such converted/corrected files and/or any use You may do with such files (to the extent We let You download such corrected files). Subject to the limited licenses granted herein, We acquire no right, title or interest from You under this Agreement in or to Your Data.
You acknowledge that the Service is not intended to be used as storage, backup or archiving services. It is your responsibility to back up your content (including Your Data) and you are responsible for any lost or unrecoverable content.
4.4. License by You to Use Feedback. You grant to Us a worldwide, perpetual, irrevocable, unconditional, royalty-free and fully paid up license to use and have used and incorporate and have incorporated into the Service or any our current or future products or services or to share with Our business partners and/or licensors any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users.
4.5 Communicate with You. Without derogation from the aforesaid, You further acknowledge and agree that (i) We and CASTOR may share Your name, address email and other contact details (if provided to Us (including through the use of the Service platform) with Our business partners and/or licensors; and that (ii) We and or Castor, including through sales representatives, are entitled to approach You and any User for operational purposes (including to conduct surveys and questionnaires) and/or for promotional purposes and/or sending You updates, notices, announcements, users’ requests and additional information in relation to the Service and/or complementary or related services or products (including in particular, CASTOR GA Service Platform), including throughout the Service platform and/or by any means of communication with which You provided Us and/or Our licensors (including CASTOR GA Service Platform) and/or business partners, including through the email address You provided throughout the registration process for the Service. You may choose not to receive materials (a) from Us by contacting Us by email at firstname.lastname@example.org or (b) from CASTOR by contacting CASTOR by email at email@example.com You may also contact Us in any aspect related to Your information at firstname.lastname@example.org.
5.1. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is identified as confidential or that should reasonably be known to be confidential or proprietary information given the nature of the information and the circumstances of disclosure, including information pertaining to the business and marketing plans, technology, software and technical data or information, product plans and designs, and business processes disclosed by the Disclosing Party. Your Confidential Information includes also Your Data. Our Confidential Information includes also the Service, the Materials and any information in connection to any of the foregoing, any other information or data of confidential and proprietary nature related to Us or Our licensors, affiliates and/or other third parties (including characteristics and other details regarding its 3D printing materials), and Our intellectual property or other proprietary materials and the terms and conditions, but not the existence, of this Agreement (including all Order Forms (including pricing therein)). However, Confidential Information does not include any information that is (i) already known by the Receiving Party (other than from Disclosing Party) without an obligation of confidentiality; (ii) publicly known or becomes publicly known through no unauthorized act of the Receiving Party; (iii) rightfully received from a third party; (iv) independently developed by the Receiving Party without use of or reference to the Disclosing Party's Confidential Information; or (v) approved in writing by the Disclosing Party for disclosure. Confidential Information may be disclosed pursuant to a requirement of a governmental agency or law (including public company reporting requirements) so long as the Receiving Party provides the Disclosing Party with written notice of such requirement before any such disclosure (to the extent permitted by law), so as to afford the Disclosing Party an opportunity to intervene and prevent or limit such disclosure.
5.2 Each party hereby agrees (i) to hold Confidential Information in strict confidence and not to make it available or disclose it to any third party except as is necessary to perform obligations or exercise rights under this Agreement, whereby Our affiliates and/or CASTOR shall not be considered as third parties for such purpose; (ii) to impose confidentiality restrictions upon the parties to whom any Confidential Information is disclosed; (iii) to take at least the same precautions to protect the Confidential Information as it takes for its own confidential and proprietary information of like importance, but in no event less than reasonable precautions; and (iv) to refrain from using the Confidential Information for any purpose other than the purposes for which that Confidential Information was disclosed and as allowed under this Agreement).
6. REPRESENTATIONS AND DISCLAIMERS
6.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power and all rights, permits and authorities to do so.
6.2. Disclaimers. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 6, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, ON OUR BEHALF AND OF BEHALF OF OUR LICENSORS, OUR AND THEIR CONTRACTORS AND BUSINESS PARTNERS DISCLAIM ANY AND ALL EXPRESS, IMPLIED, STATUTORY AND/OR OTHERWISE WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING THOSE OF MERCHANTABILITY, NONINFRINGEMENT, AND/OR FITNESS FOR A PARTICULAR PURPOSE. WE AND OUR LICENSORS, OUR AND THEIR CONTRACTORS, AND BUSINESS PARTNERS MAKE NO WARRANTY THAT THE SERVICE WILL OPERATE PROPERLY AS A BUNDLE PRODUCT OR WITH ANY OF YOUR AND/OR OTHER THIRD PARTIES SYSTEM(S), THAT THE SERVICE WILL MEET YOUR SPECIFIC NEEDS, THAT SPECIFIC RESULTS WILL BE ACHIEVED WITH SUCH SERVICE, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE.
6.3 YOUR USE OF THE SERVICE IS AT YOUR SOLE DISCRETION AND RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND. WITHOUT DEROGATING FROM THE GENERALITY OF THE AFORESAID, YOU HEREBY ACKNOWLEDGES THAT OUR SERVICES INCLUDES SUGGESTIONS ONLY PERTAINING TO 3D PRINTING OF CERTAIN PARTS UPLOADED TO OUR SERVICE AND/OR POTENTIAL SERVICE BUREAUS YOU MAY CONSIDER TO ENGAGE WITH. ANY SUGGESTION (INCLUDING THE REPORT OR ANY COST ESTIMATION THAT MAY BE PROVIDED UNDER THE SERVICE) IS ADVISORY ONLY. WE MAKE NO PROMISES THAT SUCH SUGGESTIONS WILL BE SUITABLE FOR YOUR NEEDS OR FOR THE ACTUAL PRINTING RESULTS (IF ANY). ANY PRINTING YOU CONSUMMATE BASED ON SUGGESTIONS PROVIDED TO YOU ARE AT YOUR OWN RISK. WE WILL NOT BE LIABLE TO YOU FOR ANY LOSSES OR DAMAGES SUFFERED BY YOU RESULTING FROM YOUR USE OF, OR RELIANCE ON, THE SERVICE. IT IS YOUR RESPONSIBILITY TO EVALUATE THE SAME. THE FINAL DECISION SHOULD ALWAYS BE MADE BY A PROFESSIONAL TO ENSURE THE MANUFACTURING METHOD, SETUP AND OTHER VARIABLES WILL PRODUCE THE INTENDED RESULTS, INCLUDING IN TERMS OF COST, FUNCTIONALITY AND SAFETY.
6.4 YOU FURTHER ACKNOWLEDGE THAT THE SERVICE IS STILL AT DEVELOPMENT STAGES. THERE IS NO ASSURANCE THAT THE USE OF THE SERVICE WILL YIELD THE DESIRED BENEFITS; IN FACT, THE USE OF THE SERVICE MAY ENTAIL UNDESIRED RESULTS.
6.5 Without derogating from the generality of the above, neither We nor Our licensors shall be liable for any mistakes or errors found in the Documentation, quotes or other materials produced through the use of the Service (including in connection with converted/corrected files). No advice or information, whether oral or written, obtained by You from Us or from CASTOR (including through the Service), shall create any warranty.
7.1 You shall defend, indemnify and hold Us, Our licensors, affiliates, employees, contractors, business partners, and agents (collectively, the "Indemnified Parties") harmless from any actions or claims brought against the Indemnified Parties to the extent based on: (i) any claim by a third party alleging that Your Data, or Your use of the Service are in breach of this Agreement, infringes or misappropriates any third party’s Intellectual Property Rights or violates any law; (ii) any computer software virus introduced by You; (iii) the results obtained or decisions made by you of the Service; (iv) any breach of this Agreement by You including the representations and warranties provided herein or any breach of Sections 2 or 4 of this Agreement.
7.2 The indemnification obligations set forth in this Section 7 are conditional on Us: (a) notifying You promptly in writing of such action, however, the failure to do so will not relieve You of Your indemnification obligations hereunder, except to the extent You have been materially prejudiced thereby, (b) giving You control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at Your request and expense, assisting in such defense and settlement.
8. LIMITATION OF LIABILITY
8.1 IN NO EVENT WILL WE, OUR LICENSORS, OUR AND THEIR AFFILIATES, CONTRACTORS, BUSINESS PARTNERS AND OUR AND THEIR OFFICERS, MANAGERS, AGENTS OR EMPLOYEES BE LIABLE TO YOU UNDER OR IN CONNECTION WITH OR IN ANY WAY RELATING TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, FOR ANY LOST PROFITS, LOSS OF BUSINESS, INCOME OR SAVINGS, PUNITIVE DAMAGES OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR ANY INDIRECT DAMAGES OR CONSEQUENCES OF SUCH EVENT AND WHETHER OR NOT FORESEEABLE, REGARDLESS OF HOW CHARACTERIZED, OR ADMINISTRATIVE LOSS, LOSS OF DATA, LOSS OF COMMERCIAL REPUTATION OR OTHER CONSEQUENTIAL OR INCIDENTAL DAMAGE OR LOSS, EVEN IF WE, OUR LICENSORS, OUR AND THEIR AFFILIATES, CONTRACTORS, BUSINESS PARTNERS AND THE RELATED PARTIES MENTIONED ABOVE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM AGAINST US, OUR LICENSORS AND OUR AND THEIR RELATED PARTIES MENTIONED ABOVE BY ANY THIRD PARTY. THE AGGREGATE LIABILITY OF US AND OUR LICENSORS, AND OUR AND THEIR AFFILIATES, CONTRACTORS AND BUSINESS PARTNERS AND THE RELATED PARTIES MENTIONED ABOVE WITH RESPECT TO ALL CLAIMS ARISING UNDER, IN CONNECTION WITH, OR IN ANY WAY RELATING TO THIS AGREEMENT AND UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT OR IN TORT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SHALL NOT EXCEED THE AMOUNT RECEIVED BY US FROM YOU DURING THE PREVIOUS 6 MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM (IF ANY).
8.2 IN NO EVENT WILL WE AND/OR OUR LICENSORS HAVE ANY LIABILITY TO YOU OR ANYONE ELSE FOR ANY BODILY INJURIES. THIS INCLUDES INJURIES CAUSED BY THE MANUFACTURED PART, WITH OR WITHOUT RELYING ON THE SERVICE (INCLUDING ANY SERVICE SUGGESTIONS).
9. TERMINATION OF SERVICES
9.1 Term of Agreement. This Agreement commences on the date You first accept it (including by a way of your first use or attempt to use the Service) and continues in case of (i) Section 9.2 until all subscriptions purchased by You have expired or have been terminated or (ii) Section 9.3 until termination of Your access to the Service.
9.2 Term of Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form or any other written arrangement executed by Us and subject to other provisions set forth in this Section 9, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal of at least 30 days before the end of the relevant subscription term. The pricing during any automatic renewal term will be the same as that during the immediately prior term (except for any discount provided thereunder which shall not continue to apply during the renewal term, unless the Order Form provides otherwise), unless We have given You a written notice of a pricing increase at least 60 days before the end of that prior term, in each case the pricing increase will be effective upon renewal and thereafter.
9.3 Termination. You may stop using the Service at any time. We may suspend or terminate your access to the Services or this Agreement at any time at our discretion and without notice if You do not comply with this Agreement or if You becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for Your business or assets, becomes subject to any proceeding under any bankruptcy or insolvency laws, or has liquidated all or a substantial portion of its assets, voluntarily or otherwise. We may also terminate this Agreement, in whole or in part, in case we decide that the Service or any part thereof has reached its end of life, by providing You a notice of at least 30 days in advance. If the Service is being provided to You free of charge, We may, at any time according to our sole discretion, suspend or terminate Your access to the Service or pending continuance usage by purchasing of a subscription. It is clarified that Your right to use the Service is subject to Us having a license in effect from CASTOR such rights and your rights herein, in whole or in part, shall immediately expire or terminate upon termination or expiration of Our license from CASTOR.
Termination of this Agreement shall not obligate US to return or refrain from collecting any part of any fees paid or then owed by You.
9.4 Effect of Termination. Upon the expiration or termination of this Agreement for any reason, You shall comply with the following: (i) You shall immediately cease to use and access to the Service, and shall destroy all copies of the Service and materials containing or bearing the Confidential Information provided by Us; (ii) You shall pay all fees and payments due to Us up to the effective date of termination or expiration and shall continue to pay all sums which accrue to Us after termination or expiration, if any.
10. GENERAL PROVISIONS
10.1 Entire Agreement and Order of Precedence. This Agreement (including any Order Form) are the entire agreement between You and Us regarding the Service and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral agreements, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The set forth in the main body of this Agreement shall control over any contradicting terms and conditions of any Order Form and/or any other agreement executed between the parties, unless the Order Form or any such other agreement explicitly set forth otherwise.
10.2. Assignment. Neither party may assign this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided, however, either party may assign this Agreement to an affiliate, a successor in connection with a merger, acquisition, consolidation, divestiture, spin off, change of control, or similar such transaction, or to the purchaser in connection with the sale of all or substantially all of such party’s assets related to this Agreement. This Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective successors and permitted assigns. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
10.3. Relationship of the Parties. Notwithstanding anything to the contrary herein or elsewhere, the parties acknowledge and agree that no relationship of employment or legal partnership is created by this Agreement. Each party is an independent contractor and in no way a legal representative or agent of the other party. You have no authority to assume or create any obligation on Our and Our licensors or affiliates behalf, expressed or implied. We may use third parties in provision of the Service.
10.4 Limitation of Actions. No action, regardless of the form, arising under this Agreement may be brought by You more than two (2) years after either (i) the cause of the action has arisen, or (ii) You become aware of the cause of action, whichever is later.
10.5. Waiver. No consent by either party to, or waiver of, a breach of this Agreement by the other party, whether express or implied, shall constitute a consent to, waiver of, or excuse for any other different or subsequent breach by the other party.
10.6. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
10.7. Notices. Any notices that We may be required to provide to you, whether under law or according to this Agreement, may be provided by Us to any contact information you have provided in your account information, including through email. You expressly agree to the receipt of such communications and notices in such manner.
10.8 Injunctive Relief. The parties agree that violation in any respect of Sections 3, 5 and/or 6 would cause the non-breaching party irreparable injury for which it would have no adequate remedy at law and that such party will be entitled to seek injunctive relief, including preliminary and other interim relief, against any such violation, in addition to its other remedies.
10.9 Surviving Provisions. Sections 1, 3, 4.2, 4.3, 4.4, 4.5, 5, 6, 7, 8, 9.4 and 10 will survive any termination or expiration of this Agreement for any reason.
10.10 Compliance with Laws. You hereby acknowledge and agree that it is prohibited to use the Service (i) outside the Territory, or (ii) by a national or resident of Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria and Lebanon or any other country subject to U.S., German or Israel economic sanctions or other trade controls; or (iii) by anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons, List of Specially Designated Terrorists or List of Specially Designated Narcotics Traffickers or the U.S. Commerce Department's Table of Deny Orders, Denied Persons List, Unverified Parties List, Entities List, or the U.S. State Department's list of Debarred Parties, any state declared by the Ministry of Finance or any other Israeli or German governmental authority as an Enemy State pursuant to the relevant Trade Ordinance with the Enemy, or (iv) by any country or destination for which the US, German or Israeli government or a US, German or Israeli government agency requires an export license or other approval for export without first having obtained such license or other approval. You shall, at Your own expense, perform this Agreement (and any related agreements) in compliance with all applicable laws and obtain and arrange for all governmental approvals, consents, license authorizations, declarations, filings, and registrations as are required by applicable law in connection with Your respective activities related to the subject matter of this Agreement.
10.11 Governing Law and Jurisdiction. This Agreement shall be governed by the laws of Germany, exclusive of its choice of law rules. Any dispute arising under this Agreement or concerning the Service shall be finally and exclusively settled by the competent courts of Essen, Germany.
10.12 We may change this Agreement from time to time, and such change will become effective upon the date on which it is posted on Our website. You are responsible for checking the website regularly for such changes. By continuing to access or use the Service you agree to be bound by the revised Agreement.
10.13 Construction. Any reference in this Agreement to a “Section,” “Exhibit” or “Schedule” refers to the corresponding Section, Exhibit or Schedule of or to this Agreement, unless the context indicates otherwise. The table of contents and the headings of Sections are provided for convenience only and are not intended to affect the construction or interpretation of this Agreement. All words used in this Agreement are to be construed to be of such gender or number as the circumstances require. The words “including,” “includes” or “include” are to be read as listing non-exclusive examples of the matters referred to, whether or not words such as “without limitation” or “but not limited to” are used in each instance. Where this Agreement states that a party “will”, “shall” or “must” perform in some manner or otherwise act or omit to act, it means that the party is legally obligated to do so in accordance with this Agreement. The term “or” will not be deemed to be exclusive. Any reference to a statute is deemed also to refer to any amendments or successor legislation as in effect at the relevant time. Any reference to a contract or other document as of a given date means the contract or other document as amended, supplemented and modified from time to time through such date.
February 25, 2020