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This End User License Agreement (“EULA”) is a legal agreement between the customer legal entity stated in the Order Form, hereinafter, “Customer” and the Allshares entity stated in the Order Form (“Allshares”). Access to and use of the Cloud Services described herein is conditioned upon Customer’s acceptance of and compliance with this EULA.
In addition to Customer’s acceptance by its signature below, Customer’s access to and use of the Cloud Services indicates Customer’s approval of Sub-Provider as a subcontractor under the Prime Contract and its intention to be bound by the terms of this EULA and to ensure compliance with the terms hereof by all Users authorised by Customer.
DEFINITIONS APPLICABLE TO THIS EULA
Cloud Materials
means any work product, including the Solution, or tangible results produced by or with Sub-Provider under this Agreement or any Statement of Work, to the exclusion of any Allshares Data or Allshares Confidential Information.
Cloud Services
means (i) the hosting and operation of the Cloud Materials, and other necessary system, software and utilities on the Platform, and making such Cloud Materials and Data available to Users via the Platform, and (ii) the Support Services.
Confidential Information
means, in addition to its meaning under the Prime Contract and applicable herein, any information whatsoever relating to the terms and conditions of this EULA, Allshares and Sub-Provider’s business, Personal Data or any other proprietary information of the disclosing party.
Documentation
means the documentation produced by Sub-Provider and made available on the Platform to Customer specifying how the Solution should be used as well as any other materials provided by Sub-Provider as part of the Cloud Services.
Intellectual Property
means copyrights, patents, trademarks, service marks, service names, trade names, domain names, together with all goodwill associated therewith, registrations and applications therefor, technology rights and licenses, computer software (including any source or object codes therefor or documentation relating thereto), trade secrets, franchises, know-how, inventions, and other intellectual property rights, including applications and registrations for any of the foregoing, in any country, arising under statutory or common law or by contract and whether or not perfected, now existing or hereafter filed, issued, or acquired.
Group Company
means any legal entity that (a) directly or indirectly controls the Party, or (b) is under the same direct or indirect control as the Party, or (c) is directly or indirectly controlled by the Party for so long as such control exists. For the purposes of this definition, “control” will exist through a right to nominate or dismiss fifty (50) per cent or more of the members of the Board of Directors or persons performing similar functions, whether through ownership of shares or other instruments entitling to fifty (50) per cent or more of the number of votes represented at a general meeting, or otherwise.
Order Form
means the document utilized by Allshares to effectuate provision by Sub-Provider of the Cloud Services for Customer.
Personal Data
means all information relating to an identifiable individual, but excluding information that Allshares and/or Sub-Provider processes on its own behalf and for its own business purposes in respect of its other customers and employees.
Platform
means the cloud storage and processing infrastructure provided by Sub-Provider that is made available to and accessed by Allshares or its Customer via an Internet site operated by Sub-Provider to provide access to the Cloud Services.
Prime Contract
means the agreement between Allshares and Customer under which Allshares agrees to provide Cloud Services to Customer by way of the Sub-Provider as a subcontractor.
Software
means the online software applications provided by Sub-Provider as part of the Cloud Services.
Solution
means the Software described in the Documentation and embedding the functionalities set out in Functionality Description made available through the Platform.
Sub-Provider
means Beqom SA.
User
means Customers’ employees, agents, individual contractors or consultants who are authorised by Customer to access and use the Cloud Services.
1. No Transfer of Intellectual Property Rights. Except for the limited license rights expressly granted to Customer under this EULA, this license does not grant Customer any ownership or other right or interest in or to the Cloud Services, Cloud Materials, Software or Documentation or any other Intellectual Property rights of Allshares’ licensors (including its Sub-Provider). The Software and Cloud Services are licensed and not sold, and no ownership rights are being conveyed to Customer under the EULA.
2. License
2.1 Grant of License. Customer and its Users shall be granted a limited, nonexclusive, non-transferable, revocable license to use the Software, Documentation and Cloud Services during the license term only as authorized under the EULA and in accordance with the terms of the underlying Order Form. For the purposes of the EULA, the Software includes any updates, enhancements, modifications, revisions, or additions to the Software made by Allshares or its Affiliates and made available to Customer under the EULA.
2.2 Access Conditions. The Cloud Services will be available to Customer in accordance with and during the license term stated in the Order Form by setting up an account for Customer on the Platform and providing to Customer adequate and secure login credentials, including password capabilities, in order to permit Users to remotely access and use the Cloud Services solely for Customer and its Affiliates’ internal business operations as permitted by and subject to the terms of the EULA and the Documentation.
2.4 Access Credentials. User access credentials issued to access or utilize the Cloud Services cannot be shared or used by more than one individual at a time, provided however, a User’s access rights may be transferred from one individual to another if the original User is removed from the Cloud Services, no longer requires, or is no longer permitted access to or use of the Cloud Services. Customer will replace all login credentials and passwords, provided by Allshares with its own secure login credentials and passwords and change these at adequate intervals (but not less than quarterly for each individual User). Customer will not forward the login credentials to non-permitted third parties and will keep the login credentials and passwords safe from access by non-permitted third parties.
2.5 Extent. Customer will access the Platform via the Internet; Customer acknowledges that Allshares has no obligation to provide copies of any Software or access to the Internet to Customer as part of the Cloud Services. Customer will not copy the Documentation except for internal information purposes related to the use of the Cloud Services. Any such copies shall include any copyright or other proprietary notices that were included on such materials when Customer first received them. Customer acknowledges that Customer's right to access and use the Cloud Services shall not exceed the scope, extent and/or duration of the license term. Upon the expiration of this EULA and the underlying Order Form or the license term, Customer's right to access and use the Cloud Services hosted on the Platform shall expire and the Cloud Services shall terminate.
3. Scope of Use
3.1 Customer’s license to use the Software and the Cloud Services is subject, among any other conditions, to Customer’s payment of all licensing fees due and payable related to the Cloud Services and the license restrictions set forth in Section 3.2, and any non-payment or use of the Software and Cloud Services in violation of any of these restrictions, or any of the other terms of this EULA is considered a breach of this EULA, and in such event, further use of the Software and Cloud Services is unlicensed and prohibited.
3.2 Restrictions. When accessing the Cloud Services, Customer shall not, and shall cause its Users not to:
(a) copy, translate, disassemble, decompile or reverse-engineer the Software or Cloud Services, or attempt to create the source code from object code of the Software;
(b) modify or make any derivative works of the Cloud Services or Documentation;
(c) use any Cloud Services to transmit any content, data or information that is unlawful, defamatory, or invasive of another’s privacy right or right of publicity;
(d) infringe any intellectual property rights when using the Cloud Services;
(e) interfere with or disrupt the Platform or systems used to host the Cloud Services, or other equipment or networks connected to the Cloud Services;
(f) use the Cloud Services in the operation of a service bureau, outsourcing or time-sharing service;
(g) circumvent or disclose the user authentication, or security of the Cloud Services or any host, network, or account related thereto;
(h) access or use the Cloud Services for the purpose of building a competitive product or service or copying the features or user interface;
(i) permit access to the Cloud Services by a direct competitor of Allshares or its Sub-Provider;
(j) use Cloud Services components other than those specifically identified in an Order Form, even if technically possible;
(k) place upon, or distribute viruses or other harmful or malicious computer code via, the Cloud Services;
(l) disclose results of any Cloud Services benchmark tests without the prior written consent of Allshares and its Sub-Provider; or
(m) make any use of the Cloud Services that violates any applicable local, state, national, international or foreign law or regulation.
3.3 Customer shall not use or permit use of the Cloud Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may:
(a) threaten or harass any person or cause damage or injury to any person or property;
(b) constitute unsolicited bulk e-mail, "junk mail", "spam" or chain letters; or
(c) promote bigotry, racism, hatred or harm or infringe privacy rights.
3.4 Customer agrees to make every reasonable effort to prevent unauthorised third parties from accessing the Cloud Services. Allshares or its Sub-Provider shall have no liability to Customer in the event that Customer takes any action prohibited by this Section 3 or any action (or failure to act) that is otherwise in violation of this EULA.
3.5 Customer is obliged to protect all infrastructures of Allshares and its Sub-Provider against unauthorized access and impairment. Customer will use all such infrastructures carefully and in accordance with all relevant manufacturers’ instructions.
3.6 In case of any non-payment, or the endangerment or impairment of the Platform (e.g., among other causes, due to a DDos attack), Allshares and/or Sub-Provider shall be entitled to deactivate or temporarily suspend the Cloud Service affected. In the case of endangerment or impairment, such deactivation or temporary suspension may be conducted without informing the Customer in advance in the event that: (i) there is risk to the security or privacy of Customer's account; (ii) there is a threat to the security or integrity of the Sub-Provider network or the Cloud Services; (iii) suspension is needed to protect the rights, property or safety of Allshares or the Sub-Provider, its other clients or the public or is required by law until the endangerment or impediment has been corrected. All downtimes due to such measures shall not be considered as downtimes for calculation of availability time or any other affected performance requirement or service level.
4. Customer Content
Customer will ensure that it will not use content, nor will Customer store any content on the Platform or make content available in any other way which contains malicious code or other malware such as Trojan horses, time bombs, viruses etc. In addition, Customer will ensure that it will not use content nor store any content on contractual storage space if usage, transfer, publication and/or making this content available, is forbidden by applicable law or violates third party rights.
5. Confidentiality
5.1 Confidential Information shall not be used or reproduced in any form except as required to accomplish the intent of this EULA. Any reproduction of any Confidential Information of Allshares or Sub-Provider shall remain the property of the respective disclosing party and shall contain any and all confidential or proprietary notices or legends that appear on the original. With respect to the Confidential Information, Customer (a) shall take all Reasonable Steps (defined hereunder) to keep all Confidential Information strictly confidential; and (b) shall not disclose any Confidential Information of Allshares or Sub-Provider to any third-party other than to those individuals in Customer’s organization whose access is necessary to enable it to exercise its rights and/or perform its obligations hereunder and who are under obligations of confidentiality substantially similar to those set forth herein. As used herein “Reasonable Steps” means those steps the receiving party takes to protect itsown similar proprietary and confidential information, which shall not be less than a reasonable standard of care. Confidential Information of Allshares and Sub-Provider disclosed prior to execution of this EULA shall be subject to the protections afforded hereunder. If Customer is compelled by law or legal process to disclose Confidential Information of the disclosing party, it shall provide the disclosing party with prompt prior notice of such compelled disclosure (to the extent legally permitted); any proposed disclosure will be limited to the minimum amount of Confidential Information required to satisfy that disclosure obligation, and Customer shall provide reasonable assistance, at the disclosing party's expense, if the disclosing party wishes to contest the disclosure.
5.2 The above restrictions on the use or disclosure of the Confidential Information shall not apply to any Confidential Information that: (a) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, or is lawfully received free of restriction from a third party having the right to furnish such Confidential Information; (b) has become generally available to the public without breach of this EULA by the receiving party; (c) at the time of disclosure, was known to the receiving party free of restriction; or (d) the disclosing party agrees in writing is free of such restrictions.
5.3 The documents, know-how and experience provided to Customer must be used exclusively for the purpose of this EULA. In addition, Customer will keep the content of this EULA and the findings gained during the performance of this EULA confidential.
5.4 Customer understands that the Confidential Information constitutes valuable business assets of Allshares and its Sub-Provider and its disclosure may irreparably harm the disclosing party. In the event of breach or threatened breach of obligations pertaining to Confidential Information by the informed party under this EULA, the disclosing party is entitled to seek injunctive relief and any other remedy available at law or equity.
5.5 The foregoing restrictions regarding Confidential Information of Allshares are only with respect to the services provided via the Sub-Provider and do not replace confidentiality provisions between Allshares and Customer expressed elsewhere in the Prime Contract or any other non-disclosure agreement between them.
6. Privacy and Data Protection. Customer shall comply with the statutory regulations on data protection and privacy. If personal data is processed according to Section 11 Federal Data Protection Act (mandated data processing) or the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and all complementary legislation of the EEA Member States relating to the processing of personal data, the parties shall enter into an agreement according to the then applicable template of Allshares for a mandated data processing agreement.
7. Third Party Technology. Customer is aware of the fact, that third party technology, including, but not limited to, web browsers requirements, may be appropriate or necessary for User's access to, and use of the Platform. This third-party technology will be specified in the Documentation or the Order Form as applicable; nevertheless such Third Party Technology is not included in the Cloud Services nor is the performance, non-infringement or inter-operability with Customer systems, of such Third Party Technology the responsibility of, or warranted by, Allshares or Sub-Provider.
8. Compliance with Applicable Laws. It is Customer’s responsibility to verify all legal provisions, laws, and relevant industry-sector specific stipulations relevant for Customer’s use of the Cloud Services and will ensure that its use of the Cloud Services is in compliance with such provisions, laws and stipulations. Customer shall comply with all legal duties applicable to Customer as a data controller by virtue of the submission or storage of personal data within the Cloud Services including, providing all information or notices Customer is required by law to provide to users and obtain consent of the users, where required.
9. Data Retrieval. At Customer’s request, and for a period of thirty (30) days after the termination or expiry of this EULA and underlying Order Form:
(a) Allshares shall permit Customer to access the Cloud Services solely to the extent necessary for Customer to retrieve files of Customer Data then-present on the Platform: or
(b) Customer may request Allshares to provide Customer with a copy of all Customer Data that is at such time under Allshares’ or its Sub-Provider’s control, in a generally accepted industry-standard electronic format.
Customer agrees and acknowledges that neither Allshares nor Sub-Provider have any obligation to retain Customer Data beyond that period and that Customer Data shall be irretrievably deleted after thirty (30) days following the termination or expiry of this EULA. Customer further agrees that neither Allshares nor Sub-Provider shall be liable to Customer or any third party for any termination of Customer access to the Cloud Services or deletion of Data after the aforementioned thirty (30) day period.
10. Foreign Trade Regulations. Both Parties undertake to comply with all foreign trade regulations, including anti-terrorism measures, applicable in connection with any delivery. Upon request by the Customer, Allshares shall provide all foreign trade information (in particular the statistical product number) required according to the applicable foreign trade regulations. If any necessary permits are not at all or with delay granted by the authorities, then - to the legally possible extent - any liability of Allshares for damages and other claims resulting therefrom shall be excluded. If permits are not granted, Allshares shall not be obliged to perform services. In the event of delayed granting of permits, the dates and milestones bindingly agreed in this EULA shall be reasonably extended according to the delay.
11. Third Party Beneficiary. Customer has acquired the right to access and use the Cloud Services, the Software and the Documentation through Allshares as a third-party reseller. Allshares has the right to enforce the terms of this EULA. Notwithstanding the foregoing, Customer acknowledges and agrees that Allshares’ Sub-Provider, beqom SA, shall be a third party beneficiary of this EULA, with the direct right to enforce the provisions of this EULA as if it were a party hereto.
12. Indemnity and Liability. Customer shall indemnify, defend and hold harmless Allshares, its Sub-Provider, and their officers, directors, employees and agents (each, an “Indemnitee”), from and against all demands, claims, actions, losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees and expenses) asserted against, imposed upon or incurred by an Indemnitee relating to or resulting from: (i) any material breach of a covenant, agreement, representation of warranty of Customer contained in this EULA; (ii) Customer’s violation of any applicable laws, including data protection laws; and (iii) any and all reasonable out-of-pocket costs and expenses incident to any of the foregoing (or incurred in investigating of or attempting to avoid the same or to oppose the imposition thereof). Customer’s liability for breach of this EULA is not affected by limits of liability that may be established by Customer and Allshares under the Prime Contract.
