Customer may obtain Software, support and/or other services (collectively “Products”) from iQuest subject to the terms of the Agreement. “Software” means software, data and materials made available to Customer by iQuest, including error corrections, modifications and updates to such items, and including the Documentation. “Software” does not include, and iQuest does not warrant or support, software obtained from any source other than iQuest. “Documentation” means the materials available at http://www.iquestgroup.com/en/mobileidentity/ as amended from time to time.
If Customer purchases the Products subject to the Agreement, iQuest grants Customer a worldwide, nonexclusive, nontransferable, nonsublicensable, terminable license to use the Software during the term of the Agreement subject to any license parameters specified in the Agreement including any annexes, appendices or schedules thereto.
Fees. Customer will pay all fees and any applicable Taxes (the “Fees”) as specified in the Agreement, including any annexes, schedules and appendices thereto..
All rights in the Software not expressly mentioned herein or granted under the Agreement are reserved to iQuest or its licensors. Without limiting the foregoing (except to the extent such restriction is expressly prohibited by applicable law), Customer shall not, and shall not permit others under its control to: (1) decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the Software; (2) make any modification, adaptation, improvement, enhancement, translation or derivative work from the Software; (3) violate any applicable laws, rules or regulations in connection with its access or use of the Software; (4) remove, alter or obscure any proprietary notice (including any notice of copyright or trademark) of iQuest or its affiliates, partners, suppliers or the licensors of the Software; (5) assign, sublicense, transfer, lease, rent or otherwise distribute or make available the Software to any third party (6) use the Software for High Risk Situations or otherwise contrary to the Documentation; (7) use the Software to create, deliver training on, improve (directly or indirectly) or offer a substantially similar product or service. “High Risk Situations” means situations where the use or failure of the Software could lead to death, personal injury, or environmental damage. The Software includes the third party applications and material specified at http://www.iquestgroup.com/en/mobileidentity/ (“Third Party Applications”).
4.1. Software. The Software is licensed, not sold. As between the parties, all intellectual property rights in the Software shall remain with iQuest or its licensors.
4.2. Feedback. If Customer provides any suggestions or feedback regarding the Products, then iQuest may use that information without obligation to Customer, and Customer hereby irrevocably assigns to iQuest all right, title, and interest in that feedback or those suggestions.
5.1 Confidential information shall mean all information and documents or materials, including the Agreement, including all annexes, appendices and schedules, which are marked as confidential or which are confidential by their nature or purpose. Confidential information means in particular technical information, business and other information, e.g. information about technologies, research and development, products, services, prices of products and services, customers, employees, marketing plans and financial matters.
5.2 All confidential information which one party communicates to the other under the Agreement shall be treated as confidential and shall be used only for delivering the Products. Confidential information shall be protected from unauthorized access and treated with the same care which is used for own confidential information.
5.3 Confidential information shall not be disclosed by the receiving party without the previous written consent of the other party, unless
• this is required by mandatory legal general conditions or by legal or regulatory orders, and the receiving party has informed the other party immediately and in writing about the corresponding obligation or
• the confidential information is disclosed to authorized auditors of the receiving party given that he has committed himself to confidentiality to the receiving party and/or is bound by law to a professional obligation to maintain confidentiality.
5.4 Non-confidential information shall mean any information that
• was known to the receiving party before this party received the information in the scope of the Agreement, or
• which has been concluded developed by the receiving party independent of any confidential information of the other party, or
• which the receiving party obtained from a third party, which is not bound by the restrictions of the Agreement regarding the usage and passing on of information, or
• which is or will become public without a wrongful act of the receiving party, or
• which has been exempted from these confidentiality obligations by the other party by a written declaration to the receiving party.
5.5 Written confidential information of the parties which is in the possession of the receiving party shall be destroyed after the termination of the Agreement. This obligation also applies to all other documents or data which have been created based on the aforementioned documents or data or in any other way.
5.6 The provision of this clause shall continue to apply for two years after the termination of the Agreement. If the parties have concluded a non-disclosure agreement beforehand, the stipulations of that agreement shall prevail.
5.7 The parties shall obligate its staff to a regime of non-disclosure of confidential information corresponding to the above-mentioned obligations.
5.8. Publicity. iQuest may identify Customer as a user of the Products.
6.1. Services Warranty. iQuest warrants that it will perform any services with reasonable care and skill and consistent with standards generally observed for services of a substantially similar nature. If the services fail to conform to the foregoing warranty, as Customer’s sole and exclusive remedy for such failure, iQuest will promptly attempt to re-perform the applicable Service, or at iQuest’s option refund any Fees Customer has previously paid for the applicable service(s).
6.2. Software Warranty. iQuest warrants that, during the Subscription Period, the Software will perform in material conformance with its published Documentation. If the Customer notifies to iQuest any failure of the Software to conform to the foregoing warranty, as Customer’s sole and exclusive remedy for such failure, iQuest will remedy such issues as provided in the Agreement by subsequent performance or at iQuest’ option and upon Customer’s return of the Software to iQuest, refund the unused portion of any fees paid for the software. iQuest can also provide a workaround to the issue. All warranty claims shall become statute-barred after 12 months upon delivery.
6.3. Authority. Each party warrants that it has full power and authority to enter into the Agreement.
6.4. Harmful Code. iQuest will use commercially reasonable efforts and commercially available technology to scan the Software made available to Customer for, and to remove from the then-current-version of the Software, any computer “viruses,” “worms” and other malicious code.
6.5. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, NEITHER IQUEST NOR ITS SUPPLIERS PROVIDES ANY OTHER WARRANTIES REGARDING THE PRODUCTS, AND TO THE FULLEST EXTENT PERMITTED BY LAW DISCLAIMS ALL OTHER WARRANTIES, TERMS AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES, TERMS AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM IQUEST OR ELSEWHERE WILL CREATE ANY WARRANTY, TERM OR CONDITION UNLESS EXPRESSLY STATED IN THE AGREEMENT. THE PRODUCTS ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES.
7.1. iQuest shall defend or settle at its sole expense any claim brought against Customer by a third party alleging that the Software infringes any patent, copyright, or trade secret of a third party, and iQuest shall pay the damages finally awarded or costs of settlement of the claim provided that Customer: (1) provides iQuest prompt written notice of any claim; (2) gives iQuest sole control of the defense and settlement of the claim; and (3) provides all reasonable assistance in connection with the claim.
7.2. If Customer’s rights to use the Software are, or in iQuest’s opinion could be, infringed by a third party claim, then iQuest may, at its sole option and expense: (1) procure for Customer the right to continue using the Software according to the terms of this Agreement, (2) modify the Software such that it provides materially equivalent functionality without infringing, or (3) if neither of the foregoing options is commercially reasonable, terminate the Agreement and refund the unused portion of any Fees paid under the Agreement.
7.3. iQuest is not liable under the Agreement for any claims arising from or relating to: (1) modifications to the Software not provided by or approved in writing by iQuest; (2) use of the Software in combination with any data, software, or hardware not provided by iQuest to the extent the alleged infringement would not have occurred without the combination; (3) Third Party Software;
7.4. All remedies provided herein are subject to section 8 below – “Limitation of Liability”.
To the fullest extent permitted by applicable law, iQuest’s liability for consequential losses, indirect losses and lost profit is excluded. To the fullest extent permitted by applicable law, in no event shall the total liability of iQuest to Customer under the Agreement exceed the total license fee paid by Customer to iQuest [RL1] The liability limitations in this paragraph (and otherwise in the Agreement) do not limit or exclude damages for bodily injury or death or other damages that under applicable law cannot lawfully be limited or excluded.
9.2. Force Majeure. Neither party will be liable for failure or delay in its performance under the Agreement to the extent caused by circumstances beyond its reasonable control.
9.3. Governing Law. This Agreement is to be construed in accordance with and governed by the internal laws of Switzerland and any disputes arising hereunder will be settled by the competent courts of law in Switzerland.
9.4. Notices. All notices must be in writing and addressed to the other party’s legal department and primary point of contact. Notice will be treated as given on receipt, as verified by written or automated receipt or by electronic log (as applicable).
9.6. Survival. The following sections will survive any expiration or termination of this Agreement: Restrictions, Proprietary Rights, Confidentiality, Limitation of Liability, and Miscellaneous.
[RL1] Please advise on an appropriate amount. Our GTCs stipulate a limitation of EUR 300.000. is this appropriate also for this case.