This is an agreement between You (“the customer”) and Octopus Cloud AG, Baarerstrasse 145, CH-6300 Zug, Switzerland (“Octopus Cloud”). YOU AND Octopus Cloud each are a “Party” and together are referred to as the “Parties”.
YOU MUST READ AND AGREE TO THE TERMS OF THESE GENERAL TERMS AND CONDITIONS (“THE GTCs”) BEFORE THE SPLA MANAGER SOFTWARE (“THE SPLA MANAGER”) OR ANY MODULE THEREOF CAN BE DOWNLOADED, INSTALLED AND/OR ACCESSED AND USED IN ITS ONLINE EDITION. BY ISSUING A WRITTEN SUBSCRIPTION ORDER, BY CLICKING ON THE ``ACCEPT`` BUTTON OF THESE GTCs AND/OR OF THE ONLINE SUBSCRIPTION ORDER, OR DOWNLOADING, INSTALLING, UPDATING AND/OR ACCESSING AND USING THE SPLA MANAGER, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THESE GTCs. IF YOU DO NOT AGREE TO THESE GTCs, THEN YOU SHOULD EXIT THIS PAGE AND REFRAIN FROM ISSUING A WRITTEN OR ONLINE SUBSCRIPTION ORDER, DOWNLOADING, INSTALLING, UPDATING, COPYING, ACCESSING OR USING THE SPLA MANAGER OR LICENSE KEYS.
If you are accepting these GTCs on behalf of another person, company, or other legal entity, you represent and warrant that you have full authority to bind that person, company, or legal entity to these GTCs.
1. Subject Matter
These GTCs shall exclusively govern Customer’s Subscription to the editions of the SPLA Manager and related support services as identified in Customer’s Subscription Order. No Customer standard agreements, general terms or similar documents provided by Customer shall be applicable to Customer’s Subscription to SPLA Manager.
2.1. Affiliate means, with respect to an entity, any other entity that, directly or indirectly, Controls, is Controlled by, or is under common Control with such entity from time to time but only for so long as such Control exists. “Control” and its grammatical variants for the purpose of this definition means, (i) a general partnership interest in a partnership, (ii) the beneficial ownership of a majority of the outstanding equity entitled to vote for directors, or (iii) the power to direct or cause the direction of the management and policies of such entity whether by contract or otherwise.
2.2. Assets means all of Customer’s physical and/or virtual servers which Customer as per Customer’s Subscription is entitled to manage by using the SPLA Manager.
2.3. Base Fee means a component of the Subscription Fee as further specified in section 10.1.
2.4. Customer’s Subscription means the individual contract between the Parties regarding Customer’s subscription to the SPLA Manager and related Standard or Premium Support, which contract does consist of (i) Customer’s Subscription Order in written or online form (if any); and (ii) these GTCs, as modified during the Subscription Term in accordance with these GTCs; and (iii) all other documents which as per these GTCs form an integral part of Customer’s Subscription.
2.5. Customer’s Use Rights means the limited use rights Octopus Cloud grants to Customer with regard to the SPLA Manager as specified in section 5.
2.6. Confidential Information means all information, documents, records and/or data which the disclosing Party at the time of disclosure has designated to be confidential or which, given its nature and circumstances of disclosure, ought to reasonably be considered confidential. Information is not considered Confidential Information in the event the information in question
(i) is approved for public release by written agreement of the discloser;
(ii) is already rightfully known to the recipient free of any restriction at the time it is obtained from the disclosing Party;
(iii) is subsequently disclosed to the recipient lawfully by a third party without imposing any restrictions whatsoever;
(iv) is or becomes public knowledge: or
(v) is developed independently by one Party without referring to Confidential Information belonging to the other Party.
2.7. Documentation means all published specification materials, technical documentation, software and/or service description related to the SPLA Manager (which does include all such material published in the cloud-based editions of the SPLA Manager), such as product descriptions, customer manuals, acceptable use policies (if any), and instructions together with any updates and/or revisions that Octopus Cloud might provide from time to time.
2.8. Effective Date means the date on which Customer’s Subscription becomes effective, which date is specified in the relevant Subscription Order.
2.9. Initial Term means the initial term of Customer’s Subscription as specified in Customer’s Subscription Order. If no such term is specified in the Subscription Order, the Initial Term shall per default be one (1) month.
2.10. Force Majeure shall have the meaning specified in section 16.3.
2.11. Normal Business Hours means the hours Octopus Cloud is open for business, which hours are from 8.00am until 5.00pm CET on official working days excluding public holidays at Octopus Cloud’s offices in Zug, Switzerland.
2.12. Octopus Cloud Distribution Partner means a third party which is authorized by Octopus Cloud to distribute the SPLA Manager and, as the case may be, provide certain services related to the SPLA Manager directly to Customer.
2.13. Octopus Cloud Support Terms means the then-current support terms with regard to the SPLA Manager that Octopus Cloud does officially communicate and publish. The Octopus Cloud Support Terms are an integral part of Customer’s Subscription.
2.14. Official Price List means the then-current list of per asset and other prices for the SPLA Manager and related services that Octopus Cloud does officially communicate and publish. The Official Price List are an integral part of Customer’s Subscription.
2.15. Premium Support shall have the meaning specified in section 8.
2.16. Renewal Term – means a term for which Customer’s Subscription does automatically renew, which term shall be equal to the duration of the Initial Term.
2.17. SPLA Manager shall mean the software-solution developed and offered for subscription by Octopus Cloud for customers to conduct a software and hardware scan, to enter service platforms, applications, virtual entities, terminal server and virtual desktops, to get an automatic match with corresponding products and licenses as well as maintenance of license contract or support and a tool based support regarding Software Asset Management audits. The SPLA Manager currently provided to customers consists of a Reporter Module, an Intelligence Module and a Scanner Module. The Reporter Module can be subscribed to for a pre-defined term and used in either (i) a software edition, that is to be installed on end clients’ premises; or (ii) a cloud based edition, the Scanner Module may only be subscribed to in a software edition and the Intelligence Module is only made available in a cloud-based online edition. For the purpose of Customer’s Subscription, “SPLA Manager” shall mean the software edition(s) Customer wishes to subscribe to, which edition(s) is/are identified in Customer’s Subscription Order and all and any updates, upgrades and other later versions thereof which Customer is eligible to receive either under Customer’s Subscription and/or any other agreement with Octopus Cloud.
2.18. Standard Support shall have the meaning specified in section.
2.19. Subscription Fee means the recurring fees the Customer will pay to Octopus Cloud for using the SPLA Manager during the Subscription Term, which fee consists of the Base Fee and the Variable Fee.
2.20. Subscription Order means an order based on Octopus Cloud’s then current standard order template (in hardcopy or web-based form provided via Octopus Cloud’s website or the access page of the cloud-based edition of SPLA Manager) with which Customer orders and subscribes to SPLA Manager and Standard or Premiums Support.
2.21. Subscription Term means the total period of time Customer’s Subscription to the SPLA Manager and, as the case may be, Standard or Premium Support remains effective (see section 18.1).
2.22. Support Fee means the recurring fees the Customer will pay to Octopus Cloud for receiving support services with regard to the SPLA Manager.
2.23. Variable Fee means a component of the Subscription Fee which is based on the number of Assets Customer is managing with the SPLA Manager (as further specified in section 10.1.
3. The SPLA Manager
3.1. The features and specifications of the various editions of the SPLA Manager are documented and described in the Documentation.
3.2. Customer hereby acknowledges and agrees that due to the constant and on-going development and enhancement of the SPLA Manager and other products and service offerings provided by Octopus Cloud now or in the future, Octopus Cloud may at its sole discretion at any point in time change, update and modify the SPLA Manager and its features and functionalities, change or modify the Octopus Cloud Support Terms, increase or decrease the number, type or documentation available in relation to the SPLA Manager, and/or discontinue the distribution, subscription or availability of certain parts, modules, editions of or the entire SPLA Manager.
4. Intellectual Property Rights
4.1. The Customer hereby acknowledges that the SPLA Manager is subject to intellectual property rights which are and shall remain in their entirety with Octopus Cloud, its Affiliates and/or its suppliers (if and to the extent third party components are integrated). Unauthorized copying, use or modification of any portion of the SPLA Manager, or violation of Customer’s Subscription may be subject to legal prosecution.
4.2. Customer hereby acknowledges that parts of the SPLA Manager may contain open source software and/or third party software. Customer agrees to review any documentation that accompanies the SPLA Manager or is identified in the Documentation in order to determine which portions of the SPLA Manager are open source software and/or third party software and are licensed under a specific open source software license and/or proprietary license.
To the extent any such license requires that Octopus Cloud provides Customer the rights to copy, modify, distribute or otherwise use any open source software that are inconsistent with the limited rights granted to Customer as per Customer’s Subscription, then such rights in the applicable open source software license and/or proprietary third party license shall take precedence over the rights and restrictions granted in these Customer’s Subscription, but solely with respect to such open source software and/or the relevant third party software. Customers does acknowledge that any open source software license and/or identified third party license is solely between Customer and the applicable licensor. Customer agrees to comply with the terms of all applicable open source software and/or third party licenses. Copyrights or other intellectual property rights to such open source software or third party software are held by the copyright holders indicated in the copyright notices in the corresponding source files and/or, as the case may be, an appendix to these GTCs.
4.3. All rights to trademarks, brand names, logos and other words and symbols that serve to identify either of the Parties and/or its products and/or services remain with such Party. Either Party shall only be entitled to use any such trademarks, brand names, logos and other words and symbols of the other Party if and to the extent permitted by these GTCs.
5. Customer’s Use Rights
5.1. For the duration of the Subscription Term, Octopus Cloud grants to the Customer a worldwide non-exclusive right to use the SPLA Manager solely for its and its Affiliates’ business purposes and as specified in the Documentation. The Customer’s Use Rights are limited to the number of Assets and/or are subject to other limitations specified in Customer’s Subscription Order (which license metrics may be subject to adjustment during the Subscription Term) and are subject to further restrictions and Customer’s obligations as specified in Customer’s Subscription.
5.2. Customer’s Use Rights with regard to the SPLA Manager are non-transferable and may not be sublicensed or used for the benefit of third parties other than Customer’s Affiliates and/or Customer’s SPLA End Customers, always provided that Customer has subscribed to a sufficient number of Assets and/or any such other metric to fully cover such business.
6. Customer’s General Obligations
(i) will take all actions, preparations and/or precautions which can reasonably be expected from Customer in order to enable Octopus Cloud to meet its obligations related to Customer’s Subscription – this will include (but not be limited to) the Customer being responsible for and preparing all information, data and necessary access to such information or data as may be required by Octopus Cloud;
(ii) will use the SPLA Manager within the limits agreed and in accordance with Octopus Cloud’s acceptable use policies or similar directives (if any);
(iii) will protect the collection, transmission and input of its data to Octopus Cloud via the internet being within the Customer’s responsibility. Generally, no encryption is implemented for the transport of data;
(iv) consents that Customer’s standard device information (including but not limited to technical information about Customer’s device, system, application software and peripherals such as IP or MAC-address) is used by Octopus Cloud for authentication reasons as well as for optimization of the SPLA Manager for the Customer’s benefit;
(v) will not to rent, lease, license, lend, pledge, or directly or indirectly transfer or assign or distribute the SPLA Manager or the access thereto to any third party or to access all or any part of the SPLA Manager to build a competing product or service, unless otherwise agreed in writing between Octopus Cloud and Customer;
(vi) will not to use the access to Octopus Cloud’s website and/or user account to the SPLA Manager modify, copy, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the SPLA Manager in any form or media or by any means, unless Octopus Cloud has in advance expressly agreed to any such action in writing and Customer has agreed to additional terms;
(vii) will not attempt to reverse compile or engineer, disassemble or otherwise reduce or extract to human-readable code for all or any part of the SPLA Manager;
(viii) will ensure with all reasonable efforts that the SPLA Manager is not used by its employees and/or its other authorized users for illegal purposes or that any of the data entered by such individuals on behalf of Customer contains illegal content or that users authorized by Customer do cause other damages to Octopus Cloud’s SPLA Manager;
(ix) will ensure that Customer’s employees and/or its other authorized users safeguard and keep confidential all access credentials with regard to the cloud-based edition of the SPLA Manager.
7. Standard Support
7.1. If Customer has elected to subscribe to Standard Support, Octopus Cloud shall provide support to Customer with regard to the SPLA Manager as specified in the Octopus Cloud Support Terms and shall on a best effort basis seek to resolve or circumvent any defect as specified in section 12.7. If Octopus Cloud’s testing and examination reveal that the alleged defect in the SPLA Manager does not qualify as warranty case (as specified in section 12.2), Octopus Cloud shall be entitled to charge its efforts to Customer on a time and material basis at the service rates specified in Octopus Cloud’s Official Price List.
If a certain defect does not materially impair Customer’s use of the SPLA Manager, Octopus Cloud reserves the right to either deliver a preliminary work-around or similar solution and/or to solve such issue in the next release of the SPLA Manager delivered to or made accessible to Customer.
7.2. If and to the extent Customer has subscribed to a software based on-premises edition of the SPLA Manager, Customer shall as part of Standard Support be entitled to periodically receive or download from Octopus Cloud any new versions, updates, patches or fixes of such software-based edition of the SPLA Manager once made officially available by Octopus Cloud to its entire client base (which normally will happen within a period of two months after the cloud-based edition of the SPLA Manager has been updated accordingly).
7.3. If Customer has elected to receive Standard Support, Octopus Cloud shall be entitled to, in addition to the Subscription Fee, charge Customer a monthly Support Fee equal to the percentage of the applicable monthly Subscription Fee as specified in the Subscription Order. Such Support Fee for Standard Support will be invoiced together with the recurring Subscription Fees.
7.4. Standard Support is an option that per default is provided to Customer. If Customer elects not to subscribe to either Standard or Premium Support, Octopus Cloud does provide the SPLA Manager only under the limited warranty specified in section 12.3.
8. Premium Support
8.1. If Customer has elected to subscribe to Octopus Cloud’s Premium Support (as identified in the Subscription Order) then the terms and conditions of this section 8 and the Octopus Cloud Support Terms shall apply in addition to those regarding the Standard Support specified in section 7.
8.2. If Customer has elected to receive Premium Support, Octopus Cloud shall be entitled to, in addition to the Subscription Fee, charge Customer a monthly Support Fee equal to the percentage of the applicable monthly Subscription Fee as specified in the Subscription Order. Such Support Fee for Premium Support will be invoiced together with the recurring Subscription Fees.
9. Other Octopus Cloud Services
9.1. Installation Support
Upon Customer’s request and if so specified in the Subscription Order, Customer may order from Octopus Cloud installation support with regard to the SPLA Manager. If there’s certain installation days indicated in the Subscription Order and unless specified otherwise, Customer shall be free to, at its discretion, call such installation support at any it being understood though that Octopus Cloud will need a reasonable lead time to dedicate appropriate resources to Customer.
9.2. Additional Services
Octopus Cloud may provide additional services to Customer in relation to the operation of the SPLA Manager (such as consulting services), which services shall be subject to separate contractual arrangements between the Parties.
10. Subscription and other Fees
10.1. Customer shall pay to Octopus Cloud or, as the case may be, to an Octopus Cloud Distribution Partner the Subscription Fee and the Support Fee specified in the Subscription Order (as modified during the Subscription Term along the terms specified in section 11). The Subscription Fee is based on (i) the Base Fee Customer qualifies for on the basis of Octopus Cloud’s Official Price List; and (ii) a Variable Fee, which is calculated on the basis of the applicable fee per Asset Customer qualifies for as per Octopus Cloud’s Official Price List and the number of Customer’s Assets managed with the SPLA Manager. The number of Assets initially relevant and specified in the Subscription Order has been jointly calculated by the Parties based on a first scan of Customer’s relevant system environment.
The Support Fees are based on a certain percentage of the total Subscription Fee as identified in the Subscription Order.
10.2. Depending on the duration of the Initial Term chosen by Customer (if any), further discounts may apply. Any such discounts shall be identified in and deducted from to the Subscription Fee specified in the Subscription Order.
10.3. If Customer consents to enable Octopus Cloud to use Customer’s name for certain marketing efforts (as specified in section 20.1), Customer may be eligible to additional discounts. Any such discount shall be identified in and deducted from the Subscription Fee specified in the Subscription Order.
10.4. The Subscription Fees and the Support Fees for the edition of SPLA Manager chosen by Customer shall be invoiced to Customer in advance for the whole of the Initial Term or any Renewal Term. The Subscription Fee shall become due for payment within thirty (30) days as from the invoice date - if Customer fails to pay any amount invoiced and not subject to a good faith dispute within that period of time, Customer shall be considered in default without further payment reminder from Octopus Cloud.
10.5. Other Fees that may apply with regard to installation support or other add-on services are specified in the Subscription Order.
10.6. The fees specified in the Subscription Order do not include applicable VAT and other taxes.
10.7. Without due payment of the Subscription Fees, Octopus Cloud is not obliged to provide Customer with the SPLA Manager and Octopus Cloud may, without liability, suspend access to the SPLA Manager and any related services in case of non-payment of any undisputed amount of the Subscription Fees. Octopus Cloud’s termination rights as per section 18.4 remain reserved.
11. Adjustment of Fees
11.1. Customer acknowledges and agrees that Octopus Cloud may, at its sole discretion and at any point in time, generally change the applicable Official Price List, which serve the basis for the initial and recurring calculation of Customer’s Subscription Fees and Support Fees identified in the Subscription Order. Any such modification will be communicated by Octopus Cloud at least three (3) months before it shall become effective. As from the date the modifications become effective, the so revised Official Price List will operate as the basis for recalculations of the Subscription Fees and the applicable Support Fees.
During the Initial Term or any Renewal Term, the terms and conditions specified in the Subscription Order remain fixed for such Initial Term or Renewal Term and any changes to Octopus Cloud’s Official Price List shall only become relevant for the calculation of the Subscription Fees and Support Fees in the Subscription Order for the subsequent Renewal Term.
11.2. At least once per calendar year, Octopus Cloud shall be entitled to, by reverting to the most recent scans of Customer’s Assets, verify the Variable Fee, i.e. if the number of Assets Customer is permitted to manage by using the SPLA Manager does correspond to the number of assets actually managed by Customer since the last review took place.
If such review reveals that the Customer is, by using the SPLA Manager, managing more assets than the then-current Assets permitted, (i) Octopus Cloud shall be entitled to retroactively calculate and invoice the Subscription Fee and Support Fee for such additional assets; and (ii) the additional number of assets shall be added to the then current number of Assets specified in the Subscription Order, which shall be adjusted accordingly.
If such review reveals that the Customer is, by using the SPLA Manager, managing a number of assets lower than the then-current Assets permitted, such lower number of assets shall replace the then-current number of Assets specified in the Subscription Order, which shall be adjusted accordingly. The Subscription Fee and Support Fee calculated on the basis of such modified Subscription Order shall become effective with the next invoice due to Customer.
11.3. Together with a review of the Variable Fees as specified in section 11.2, Octopus Cloud shall also be entitled to verify and adjust the Base Fee in the event Customer should no longer qualify for the then-current level of discount as specified in the Official Price List. The so revised Subscription Fee and Support Fee shall become effective with the next invoice due to Customer.
12. Service and Product Warranty
12.1. Octopus Cloud undertakes to perform all services related to the SPLA Manager (such as Standard or Premium Support) faithfully and with due care and in accordance with customary industry standards.
12.2. Octopus Cloud warrants that during the Subscription Term the SPLA Manager will perform in substantial conformance with the Documentation. However, Octopus Cloud shall not be liable under this warranty, (i) if its testing and examination disclose that the alleged defect in or malfunction of the SPLA Manager does not exist or was caused by Customer’s or any third person’s misuse, negligence, improper installation or testing, unauthorized attempts to support, unauthorized access to user accounts, inappropriate use of access credentials by Customer’s employees or any other users Customer has authorized, of or any other cause beyond the range of the intended use and/or Octopus Cloud’s reasonable control; (ii) if an alleged defect in or malfunction of the SPLA Manager was not primarily caused by an error, bug, defect or failure of other software and/or hardware used in conjunction with the SPLA Manager, or by its interaction or use in conjunction with products, technology, software, hardware, equipment or systems not expressly identified in the Documentation; (iii) for any defect in or malfunction of the SPLA Manager which is caused by Customer’s breach of any provision of these GTCs, or use of the SPLA Manager contrary to the Documentation or other instructions issued or published by Octopus Cloud, and/or (iv) for any modification or alteration of the SPLA Manager by any other party than Octopus Cloud or any of its subcontractors, agents or other authorized third parties; (v) for planned or unscheduled maintenance, and/or (vi) for a suspension due to Customer’s non- or partial payment as per section 10.7.
12.3. If Customer elects not to subscribe to either Standard or Premium Support, the warranty specified in section 12.2 shall not apply and Octopus Cloud does provide the SPLA Manager only on an “as is” basis and Octopus Cloud, its Affiliates and/or suppliers make and Customer receives no warranties, express or implied, statutory or otherwise, and Octopus Cloud, its Affiliates and/or its suppliers specifically disclaim any implied warranty of merchantability, satisfactory quality, compatibility with other software and/or devices, fitness for a particular purpose, freedom from errors and/or non-infringement and their equivalents.
12.4. The output of the SPLA Manager to a certain degree depends on the input provided by the Customer and even though Octopus Cloud uses reasonable efforts to keep the SPLA Manager up to date to the development on the market and known initiatives of the market participants, Octopus Cloud cannot warrant or guarantee that the output, results and/or recommendations generated by and derived from the SPLA Manager will meet Customer’s requirements and/or fully correspond with Customer’s suppliers review points, license compliance reviews and/or audit results. Hence, all output, results and/or recommendations generated by and derived from the SPLA Manager are delivered “as is” and Octopus Cloud does not accept any additional warranty with regard to the SPLA Manager or for correctness, completeness or accuracy of any of its output.
12.5. Furthermore, Octopus Cloud does not warrant that the SPLA Manager (be it in the cloud-based or the software based on-premises edition) will be uninterrupted or error-free. Octopus Cloud shall not be responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet.
12.6. Octopus Cloud shall accept a warranty under this section 12 only to the extent (i) it has received a written warranty claim describing in sufficient detail the nature of the defect; and (ii) such defect can reasonably be reproduced and investigated upon.
12.7. Octopus Cloud’s sole obligation hereunder shall be, in Octopus Cloud’s discretion, to replace or otherwise circumvent any defective portion of the SPLA Manager with any such portion which substantially conforms to Octopus Cloud’s applicable Documentation or to repay to Customer an amount equal to the price paid by Customer to Octopus Cloud for the defective portion of the SPLA Manager during the last month.
12.8. This section 12 states Customer’s sole and exclusive rights and remedies, and Octopus Cloud’s (including Octopus Cloud’s Affiliates’, Distribution Partners’, employees’, subcontractors’, resellers’, agents’ and/or other authorized third parties’) entire obligations and liability, for any breach of warranty. Other than specified herein, Customer receives no warranties, express or implied, statutory or otherwise, and Octopus Cloud, its Affiliates and/or its suppliers specifically disclaim any implied warranty of merchantability, satisfactory quality, compatibility with other software and/or devices, fitness for a particular purpose, freedom from errors and/or their equivalents.
Octopus Cloud shall use commercially reasonable endeavors to make the cloud-based editions of the SPLA Manager available to Customer at least during Normal Business Hours, except for (i) unscheduled maintenance performed during Normal Business Hours; and (ii) upgrading to new versions. Octopus Cloud will give Customer as much advance notice regarding scheduled maintenance windows and other circumstances that may have an impact on the availability of the SPLA Manager (even if scheduled outside of Normal Business Hours) as is reasonably practicable (e-mail notification shall suffice).
14. Legal Warranty
14.1. Octopus Cloud represents and warrants that it has all necessary rights and full authority to enter into Customer’s Subscription and to perform its obligations under such arrangements without violating or infringing any third party intellectual property rights.
14.2. Should a third party claim that its intellectual property rights are infringed through the SPLA Manager, Octopus Cloud shall, at its own expense, defend or settle any suit or proceeding that is instituted against Customer shall pay all reasonable costs awarded therein against Customer or agreed upon in settlement by Octopus Cloud; provided that Customer (i) gives Octopus Cloud immediate notice in writing of any such suit, proceeding or threat thereof, (ii) permits Octopus Cloud sole control, through counsel of Octopus Cloud’s choice, to defend and/or settle such suit and (iii) gives Octopus Cloud all the needed information, assistance and authority, at Octopus Cloud’s expense, to enable Octopus Cloud to defend or settle such suit.
14.3. The above provision shall not apply to and Octopus Cloud shall have no liability or obligation for any infringement arising from: (i) any modification, servicing or addition made to the SPLA Manager by anyone other than Octopus Cloud or any of its Affiliates, Distribution Partners, employees, subcontractors, resellers, agents and/or other authorized third parties, (ii) the use of the SPLA Manager as a part of or in combination with any devices, parts or software not provided by Octopus Cloud in its Documentation, (iii) the use of such SPLA Manager to practice any method or process which does not occur wholly within the SPLA Manager; (iv) the use of other releases than the most current version of the SPLA Manager; and (v) any use of the SPLA Manager outside the limited scope of Customer’s Subscription. The above exclusions apply to the extent that the infringement would have been avoided if Customer would not have acted in any manner as specified in subsections (i) to (v) above.
14.4. In the event that the use of the SPLA Manager subscribed to by the Customer becomes enjoined or, in Octopus Cloud’s reasonable opinion is likely to become, the subject of a claim that it infringes the intellectual property rights of any third party, or in the event Octopus Cloud wishes to minimize its potential liability hereunder, Octopus Cloud may at its sole option and expense, either: (i) procure the right for the Customer to continue using the SPLA Manager, (ii) replace or modify the SPLA Manager or any part thereof such that it becomes non-infringing, or (iii) terminate Customer’s rights and obligations with respect to the allegedly infringing part of the SPLA Manager and refund to Customer the amount which Customer has paid for such part of the solution.
14.5. This section 14 states Octopus Cloud’s (including Octopus Cloud’s Affiliates’, Distribution Partners’, employees’, subcontractors’, resellers’, agents’ and/or other authorized third parties’) total responsibility and liability, and the Customer’s sole remedy, for any actual or alleged infringement of any intellectual property right for the SPLA Manager delivered hereunder or any part thereof and is in lieu of and replaces any and all other express, implied or statutory warranties or conditions regarding infringement.
14.6. Customer shall indemnify, protect, defend and hold harmless Octopus Cloud, (including Octopus Cloud’s Affiliates, Distribution Partners, employees, subcontractors, resellers, agents and/or other authorized third parties) from and against any and all claims, liabilities, losses, damages, injuries, demands, actions, causes of action, suits, proceedings, judgments and expenses, including without limitation, reasonable attorneys’ fees, court costs and other legal expenses, arising from or in connection with Customer’s breach of its obligations under Customer’s Subscription.
15. Customer Data and Data Protection
15.1. Customer owns all rights, title and interest in and to all of its data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of such data provided by Customer. All data based in the SPLA Manager as provided by Octopus Cloud remains the property of Octopus Cloud.
15.2. Unless otherwise agreed in writing, Octopus Cloud shall be entitled to rely on all data, information and materials provided by Customer without verifying the same, and Customer warrants and represents the accuracy, completeness and quality for any such item.
15.3. In the context of providing the SPLA Manager and related services to the Customer, Octopus Cloud may collect personal data and especially Customer data provided by the Customer itself, obtain such data from third parties, store, process and pass it on to third parties, while continuously observing the applicable data protection legislation. Personal data may be used by Octopus Cloud, its subcontractors, agents and/or other authorized third parties especially in order to (i) to fulfill Octopus Cloud’s contractual obligations related to Customer’s Subscription and to provide support to Customer; (ii) to foster and administer the business relationship between Octopus Cloud and Customer; (iii) to prevent unlawful use of the SPLA Manager or any such use that is in incompliance with this Customer’s Subscription; (iv) for the purpose of determination of the applicable level of the Subscription Fees, billing and/or collection purposes and/or (v) for non-personal statistical purposes (such as pages visited, time spent on a specific website or all websites, number of visits, date and time of visit) and for the general improvement of Octopus Cloud’s SPLA Manager, websites and/or services.
15.4. Octopus Cloud shall with reasonable efforts maintain, in accordance with industry standards, appropriate administrative, organizational, physical and technical safeguards to ensure the protection of the security, confidentiality and integrity of Customer’s data and shall perform a daily back-up, but Octopus Cloud does not provide or warrant archiving or storage of Customer’s data. Customer must safeguard its own back-up of any data Customer wishes to store.
16.1. Irrespective of the legal grounds for such claim, neither Octopus Cloud nor its Affiliates shall, except as provided below, be liable to the Customer and/or its Affiliates for (i) for damages caused to the other Party as a result of slight negligence; (ii) any acts or omission and/or any act or omission by its auxiliary persons and/or subcontractors, agents or other authorized third parties; and (iii) any indirect or consequential, exemplary, punitive or special damages or other damages or losses of profit etc. of any kind whatsoever or for loss of or recovery of data, or any damages caused by corrupt or inadequate data, defects, viruses, poor data quality, omissions or inaccuracies in data arising out of or in connection with the SPLA Manager.
16.2. The exclusions and limitations set forth above shall not apply:
(i) to claims and/or losses based on death and/or personal injury;
(ii) to claims and/or losses based on Octopus Cloud’s gross negligence and/or willful misconduct;
(iii) to claims and/or losses based on fraudulent misrepresentation;
(iv) if and to the extent such limitation or exclusion is not permitted by applicable law.
16.3. Neither Party shall be liable nor be deemed in default for any delay and/or failure in performance of its obligations under Customer’s Subscription to the extent such failure and/or delay is the result of causes that are not foreseeable, beyond its reasonable control and without negligence of the Party with respect to whose obligations such delay and/or failure in performance has occurred (“Force Majeure”), provided that the non-performing and/or delayed Party could not have prevented the failure or delay in performance of its obligations by using reasonable precautions.
The Party affected by an event of Force Majeure, upon giving prompt notice to the other Party, shall be excused from performance of its obligations related to Customer’s Subscription on a day-today basis only to the extent of such prevention, restriction or interference and provided that the Party so affected shall use its commercially reasonable efforts to avoid or remove such cause of non- or late performance and to minimize the consequences thereof and both Parties shall resume performance hereunder forthwith upon removal of such cause.
17.1. Each Party shall keep Confidential Information of the disclosing Party in strict confidence and shall safeguard such Confidential Information from unauthorized disclosure, reproduction or use no less rigorously than the stricter of the standards that would apply to its own Confidential Information of similar nature and the standards required by applicable law and regulatory requirements.
17.2. Both Parties agree not to disclose Confidential Information to any third parties without either Party’s prior written consent. However, both Parties shall be entitled to on a ``need-to-know`` basis share Confidential Information with its employees, subcontractors, agents and/or other authorized third parties to the extent such entities or individuals need to know such information in connection with Customer’s
17.3. Notwithstanding section 17.2, each Party may make available Confidential Information to a third party, provided such third party is subject to confidentiality obligations at least as stringent as those applicable to the Parties hereunder and for the purpose and to the extent necessary (i) for the performance of the receiving Party’s rights and obligations under Customer’s Subscription; or (ii) to permit a third party to perform legal, accounting or audit services for or in relation to a Party in assessing its business operations.
17.4. A Party may disclose the Confidential Information of the other Party to the extent, but only to the extent, required by law, regulation, rule, act, order, or request of any court, governmental authority or agency, self-regulatory organization or exchange, including but not limited to any subpoena, civil investigative demand, or discovery request or demand, provided such Party gives the other Party (to the extent not prohibited from doing so) prompt written notice and cooperation in seeking to limit the disclosure to the greatest extent possible, consistent with the legal obligations of the Party required to disclose the Confidential Information, and in obtaining confidential treatment for such information, if available.
17.5. Each Party shall immediately notify the other Party if it becomes aware of
(i) any potential disclosure, access to or use of any Confidential Information in breach of these GTCs;
(ii) any unauthorized intrusion into systems containing Confidential Information; and
(iii) any disclosure of any Confidential Information where the purpose of such disclosure does not have any apparent correlation with Customer’s Subscription.
Both Parties will give reasonable assistance to the other in order to prevent such breach of confidentiality and/or limit the consequences thereof.
17.6. The confidentiality obligations specified in this section 17 will continue to apply even after termination or expiration of Customer’s Subscription.
18. Term and Termination
18.1. Subscription Term
Customer’s Subscription enters into force at the Effective Date (as set out in the Subscription Order) and will continue in effect until terminated (as specified below in sections 18.3 and 18.4).
18.2. Initial Term
Upon expiry of the Initial Term or, as the case may be, upon expiry of a Renewal Term, Customer’s Subscription shall automatically renew for a Renewal Term unless terminated as specified in section 18.3. If not specified otherwise, any Renewal Term shall have a duration equal to the duration of the Initial Term.
18.3. Termination for Convenience
During the Initial Term and/or any Renewal Term, either Party may terminate Customer’s Subscription effective as per the end of the Initial Term or the then-current Renewal Term by submitting a written termination notice to the other Party.
18.4. Termination for Cause
Notwithstanding any of the provisions of these GTCs, Customer’s Subscription may be terminated by either Party at any time and with immediate effect by issuing a written notice to the other Party
(i) upon any material and persistent breach of Customer’s Subscription in such manner, that the terminating Party may not reasonably be expected to continue to be bound to Customer’s Subscription, provided however that the Party in breach has failed to remedy such breach within a reasonable period of time after receipt of a written notice specifying the nature of the breach. A Party may refrain from granting a reasonable period of time for remedy if and to the extent such breach from an objective point of view is not reasonably to be considered capable of remedy;
(ii) in the event of insolvency of the other Party as well as the initiation of bankruptcy proceedings, a moratorium on debt enforcement or similar proceedings (including rejection thereof due to lack of assets) against the other Party;
(iii) if Octopus Cloud has unilaterally altered or modified either its Official Price List (as specified in section 11.1), the Octopus Cloud Support Terms and/or the SPLA Manager or any portion thereof (as specified in section 3.2) in disfavor of the Customer and in such manner, that Customer may not reasonably be expected to continue to be bound to Customer’s Subscription.
The following events shall, for the purpose of this section, be considered non-exhaustive examples for a „material breach“ of Customer’s Subscription:
(i) Customer or any of Customer’s Affiliates, directly or indirectly, violate Octopus Cloud’s intellectual property rights related to the SPLA Manager or attempt to register in any way any of the trademarks, alone or in combination with other marks, names or symbols, or in any way challenge or attack the Octopus Cloud’s use, registration or ownership of any of the Octopus Cloud trademarks or intellectual property rights; and/or
(ii) if the other Party breaches any applicable laws, regulations, governmental, quasi-governmental or regulatory rules, orders, decrees, guidelines, codes of best practice or technical, safety or other standards which are related to the fulfilment of Customer’s Subscription.
19. Consequences of Termination/Expiration of Customer’s Subscription
19.1. Upon termination of Customer’s Subscription
(i) Customer’s Use Rights cease to exist and Customer shall no longer make use and benefit from the SPLA Manager;
(ii) the Customer shall pay all amounts due as well as all open amounts provided for the Subscription Order, plus related taxes and expenses within 30 days following the date of receipt of Octopus Cloud’s final invoice;
(iii) Customer’s access to the relevant user accounts shall be deactivated (if and to the extent Customer has subscribed to the cloud-based edition of the SPLA Manager);
(iv) Customer shall uninstall or delete all copies of such software and any and all intellectual property provided by Octopus Cloud to Customer (if and to the extent Customer has subscribed to the on-premises software edition of the SPLA Manager);
(v) Octopus Cloud shall, in the event of a termination for cause prior of the end of the Initial Term or a Renewal Term, refund to Customer the unused portion of any pre-paid Subscription and/or Support Fees.
19.2. Termination of Customer’s Subscription shall
(i) not prejudice or affect any right of action, remedy, or liability which shall have accrued prior to or as a consequence of such termination or expiration; and
(ii) not affect the provisions of these GTCs which, given their nature, shall survive such termination (such as the provisions in sections 4.1 and 17).
20.1. Octopus Cloud shall, upon prior consent from Customer, be entitled to (i) use Customer’s name as a reference, be it orally or in any written publication no matter in what form or media (such as Octopus Cloud’s customer reference lists on its website and sales presentations); (ii) use Customer to elaborate and publish a customer success story, customer interview or similar marketing vehicle.
20.2. Customer’s consent as described above shall be assumed if the discounts related to marketing initiatives are identified in the Subscription Order and applied to the relevant Subscription Fees.
20.3. Customer shall upon its consent reasonably support Octopus Cloud’s marketing initiatives as described above and shall have the opportunity to review and authorize any success story, customer interview or similar marketing vehicle elaborated prior to its publication.
20.4. For the sole purpose of the marketing initiatives described above, Octopus Cloud shall hereby be authorized to, during the Subscription Term, use Customer’s trademarks, brand names, logos and other words and symbols, it being understood that any such use shall be in compliance with Customer’s branding and similar guidelines communicated to Octopus Cloud in writing.
21.1. Customer’s Subscription shall not constitute or be deemed to constitute between the Parties a joint venture, partnership, employment relationship or staff loaning.
21.2. Customer shall not assign Customer’s Subscription or delegate any of its rights, duties or obligations thereunder without the prior written consent of Octopus Cloud. Octopus Cloud may assign Customer’s Subscription or its rights, interests and obligations thereunder to (i) Affiliates; and/or (ii) another party in connection with a merger with or acquisition by or sale of all of its assets. Customer’s Subscription shall be binding upon any successor in interest or title of the Parties.
21.3. Octopus Cloud is entitled to with regard to the fulfillment of its obligations related to Customer’s Subscription contract with and use subcontractors, agents and other authorized third parties. In particular, in certain cases (SAM and/or SPLA Business), certain services such as Tier 1 Support may be provided by an Octopus Cloud Distribution Partner.
21.4. If Customer contracts with independent agents, Octopus Cloud does not make any representation or accepts no commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party service or product purchased or otherwise subscribed to by Customer. Octopus Cloud does not endorse or approve any third-party website nor the content of any of the third-party website made available via the SPLA Manager.
21.5. Regardless of any disclosure made by Customer to Octopus Cloud of an ultimate destination of the SPLA Manager and, notwithstanding anything contained in Customer’s Subscription to the contrary, Customer agrees to comply with all applicable local laws, regulations, and export requirements in connection with Customer’s use of the SPLA Manager as permitted by Customer’s Subscription.
21.6. Additions, modifications, supplements and/or amendments to Customer’s Subscription (including this section 21.6) cannot be made except if made in writing and if authorized by both Parties.
21.7. Notwithstanding section 21.6, Octopus Cloud shall be entitled to, upon prior notification to Customer but at its sole discretion unilaterally modify the Octopus Cloud Support Terms and/or SPLA Manager and related information or documentation (see section 3.2) and/or its Official Price List (see section 11.1).
21.8. At no time shall any failure or delay by either Party in enforcing any provisions, exercising any option, or requiring performance of any provisions, be construed to be a waiver of same.
21.9. All notifications of termination, adjustments, amendments and supplements regarding Customer’s Subscription must be sent to the addresses for notifications specified below:
If to Octopus Cloud:
Octopus Cloud AG
If to Customer:
as specified in the Subscription Order
Notifications sent to the proper addressee(s) shall be deemed to have been made as of the date of delivery as evidenced by a return receipt.21.10. If any provision of Customer’s Subscription is for any reason held to be invalid, illegal or unenforceable, the remaining provisions shall be unimpaired, and the invalid, illegal or unenforceable provision shall be replaced by a valid, legal and enforceable provision that to the highest extent reasonably possible achieves the original intention of the Parties. This section shall apply accordingly if Customer’s Subscription is silent on an issue to be resolved.
22. Governing Law and Forum
22.1. Customer’s Subscription shall exclusively be governed and construed in accordance with the substantive laws of Switzerland, whereby (i) international conventions, including the United Nations Convention on Contracts for the International Sale of Goods of 11.04.1980 (CISG) and/or (ii) standard conflict of law rules are hereby excluded from application to Customer’s Subscription.
22.2. The ordinary courts of the Canton of Zug shall have exclusive jurisdiction with regard to all disputes arising from or in connection with Customer’s Subscription. The place of jurisdiction is Zug/Switzerland.