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Measuring Software Terms and Conditions

Measuring Software Terms and Conditions

If you have ordered a Software in form of a purchase, the below terms and conditions of Section A (Purchase Agreement) are applicable, where in case you have ordered a Software in form of a subscription, those below of Section B (Subscription Agreement) apply.

Section A – Purchase Agreement

applicable for

PROFIS Detection
PSA 200
PROFIS Ferroscan MAP
PROFIS Connect
PROFIS Layout Field
PROFIS Layout Office
PROFIS AutoCAD Field Point
PROFIS Revit Field Point
PROFIS Point Creator

(each one hereinafter referred to as the “Software”)

This Purchase Agreement ("Agreement") is effective as of the date of your order (“Order”) of the respective Software set forth in the Order ("Effective Date"), by and between Hilti (Canada) Corporation, Mississauga, Ontario ("Software Provider") and you ("Customer"). Whereas, Software Provider grants to Customer the perpetual right to use the Software as provided under this Agreement.

Now, therefore, the parties agree as follows:

1. Customer’s Use of the Software.

1.1 Software Provider Obligations. Software Provider shall make the Software as described in section 1.2 of this Agreement, available to Customer pursuant to this Agreement. Software Provider may from time to time according to its sole discretion provide Customer on a voluntary basis with updates and/or upgrades of the Software. In such case the terms of this Agreement shall also apply mutatis mutandis to such updates and upgrades.

1.3 System Requirements. The operation or use of the Software by Customer may require certain System Requirements as specified and updated from time to time on the Software Provider`s websites, whereas solely Customer shall be responsible to ensure that the System Requirements are met. The provision of System Requirements does not form part of Software Provider’s obligations under this Agreement.

1.4 Customer Obligations. Customer is responsible for its and the Authorized User’s use of the Software and his/her compliance with this Agreement, whereas “Authorized User” shall mean Customer or an employee as being identified by Customer towards Software Provider to be granted to use the Software according to section 3.4. Customer shall use reasonable efforts to prevent unauthorized access to, or use of, the Software by not authorized users (i.e. other employees, third parties, etc.) through its systems, and notify Software Provider promptly of any such unauthorized access or use.

1.5 Prohibited Activities. Customer shall use the Software solely for its internal business purposes and, except as permitted by applicable law shall not: (i) license, sublicense, decompile, sell, resell, rent, lease, transfer, assign, distribute, time share, offer, or otherwise make the Software available to any third party; (ii) use the Software in violation of applicable Laws, whereas “Laws” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to a respective party.

2. Fees, Payment & Taxes.

2.1 Fees. In consideration of Software Provider providing the Software, Customer will pay to Software Provider the one time purchase fee as agreed upon in the “Order” being issued by Customer to Software Provider.

2.2 Invoices. Unless otherwise agreed upon in the Order, Invoices are payable within fourteen (14) days of receipt of the invoice.

2.3 Default Payments. Upon Customer’s default of payment, Customer shall pay default interest amounting to one (1) percentage points per month (12% per annum) of the outstanding amount. This shall not affect the right of the Software Provider to claim any higher damages under applicable law.

2.4 Taxes. Customer is responsible for paying all sales, use, and value-added taxes associated with its receipt of the Software hereunder, but excluding taxes based on Software Provider's gross receipts, net income or property. If Software Provider has an obligation to pay or collect taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Software Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.

3. Proprietary Rights.

3.1 © Hilti Corporation 2015. Hilti Corporation, Feldkircherstrasse 100, 9494 Schaan, Liechtenstein, exclusively and unrestrictedly retains ownership, reserves all rights, title and interest and all Intellectual Property Rights (as such term is defined in section 3.2) to the Software (including related Updates and Upgrades), unless explicitly otherwise stated in this Agreement. Software Provider is entitled by Hilti Corporation to grant to Customer rights to the Software according to the terms and conditions of this Agreement.

3.2 Intellectual Property Rights. Means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable laws anywhere in the world, and all moral rights related to the Software.

3.4 Grant of Rights. Software Provider grants to Customer a perpetual, non-exclusive, single, non-transferable right to use the Software in accordance with terms of this Agreement. This right of use encompasses the right to make available to and use the Software by Customer or to have it used by the Authorized User. Additional users are not covered by this right, but shall be subject to the conclusion of further agreements regarding the use of the Software.

3.5 Manuals and Documentation. Software Provider will provide adequate user manuals and documentation for the Software that will be made available within the Software, which will describe the Software`s functions in detail and allow Customer to make use of the Software in accordance with this Agreement. Software Provider will update the manuals and documentation in due course after a change of the Software so requires.

3.6 Restrictions. Except as permitted by local law, Customer shall not (i) modify, copy or create any derivative works based on the Software; (ii) frame or mirror any content forming part of the Software, other than on Customer's own intranets for its own internal business purposes; (iii) reverse engineer or decompile the Software or any part thereof; (iv) access the Software in order to build any commercially available product or service; (v) copy any features, functions, interfaces or graphics of the Software or any part thereof; or (vi) use the Software in any manner that exceeds the scope of use permitted herein.

4. Confidentiality.

4.1 Confidentiality. A party shall not disclose or use any Confidential Information (as such term is defined in section 4.2) of the other party for any purpose outside the scope of this Agreement, except with the other party's prior written permission or as required by Law and permitted by section 4.4, below.

4.2 Confidential Information. Means (a) the Software in any form, (b) each party’s business or technical information, including but not limited to any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how.

4.3 Protection. Each party agrees to protect the Confidential Information of the other party in the same manner that it protects its own Confidential Information of like kind (but in no event using less than a reasonable degree of care and reasonable technology industry standards).

4.4 Compelled Disclosure. If a party is compelled by Law to disclose Confidential Information of the other party, it shall promptly provide the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provide reasonable assistance, at the other party's cost, if the other party wishes to prevent or contest the disclosure.

4.5 Remedies. If a party discloses or uses (or threatens to disclose or use) any Confidential Information of the other party in breach of confidentiality protections hereunder, the other party shall have the right, in addition to any other remedies available, to injunctive relief to stop such acts, it being acknowledged by the parties that any other available remedies are inadequate.

4.6 Exclusions. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other party; (ii) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (iii) was independently developed by a party without breach of any obligation owed to the other party; or (iv) is received from a third party without breach of any obligation owed to the other party.

5. Access of Software & Data Back-Up.

5.1 Access of Software. Except for Software that is pre-installed on a Hilti tool ordered by Customer, where such order is subject to Hilti`s separate respective general terms and conditions of sale, Software Provider will make the Software available to Customer according to the Software Description for downloading via Software Provider`s websites, whereas Software Provider will not have any delivery obligation over and beyond that; in particular, Software Provider will not install the Software on Customer`s premises or will not provide Customer with the source code of the Software. In any case all implementation services to technically prepare the Software for operational use (i.e. setting up the Software to meet technical system requirements and technical parameterization of the Software) shall solely be done by Customer. In case

5.2 Business Customers. The Software is solely intended to be used on premises by business customers and not by private end consumers.

5.3 Data Back-Up. The Software shall be installed by Customer and stored on Customer`s premises, therefore, it remains Customer`s sole responsibility to retain up to date back-ups of any data in connection with the use of the Software.

5.4 Disclaimer.

Prior to using the Software Customer has been informed by Software Provider via the Software`s “Disclaimer Section” how to use the Software and assumptions to be considered by using the Software and has or herewith gives its informed consent to observe to the strictest in addition to the provisions of this Agreement to the terms and conditions as stated in the Disclaimer Section; particularly, but not limited to such terms of the Disclaimer Section include (i) references to use Software Provider`s products according to the applicable information of use, (ii) references to use the Software according to the User Manual contained within the Software and (iii) the strong recommendation to the let all results generated with the Software and other Software Provider`s products be confirmed with a professional designer and/or structural engineer to ensure that the results an designs are suitable and adequate for Customer`s specific jurisdiction and project requirements.

6. EXCLUSION OF WARRANTY.

EXCEPT AS SET FORTH IN SECTION 5.1, SOFTWARE PROVIDER HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. SERVICE PROVIDER DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER IS SOLEY RESPONSIBLE FOR ITS SELECTION AND USE OF THE SOFTWARE. THE WARRANTY PERIOD IS THIRTY (30) DAYS AFTER THE SOFTWARE HAS BEEN MADE AVAILABLE FOR DOWNLOAD OR WHERE THE SOFTWARE IS PRE-INSTALLED UPON THE DELIVERY OF THE RESPECTIVE HILTI TOOL.

7. Remedies in case of Defects.

7.1 Rectification. Customer shall notify Software Provider immediately after download of the Software or upon delivery of the respective Hilti tool containing the Software, of any alleged Defects (as such term is defined in section 7.2) of the Software in writing, including a description of the alleged Defect. Only upon such immediate notification of such a Defect, Software Provider shall within a reasonable time period rectify the Software in accordance with the terms of this Agreement; Software Provider may decide at its sole discretion whether to cure a given Defect by means of repair or replacement delivery, where repair or replacement of the Software constitute Customer`s sole and exclusive warranty claims.

7.2 Defect. Means a severity of errors that prevents the Software from operating as described in section 1.2, whereas in case (i) a work-around can be utilized with reasonable effort by Customer or in case (ii) an error does not lead to a downtime or to a serious disturbance of Customer`s data integrity, such errors shall not be deemed as a Defect.

8. User Manual

The User Manual on how to use the Software can be accessed within the Software.

9. Limitation of Liability.

9.1 Limitation of Liability. Software Provider’s liability for damages arising out of or in connection with this Agreement shall be limited as follows: (i) the total liability of Software Provider, whether in contract, tort (including negligence) or otherwise, shall in no circumstances exceed a sum equal to the purchase fee in section 2.1; (ii) Software Provider shall not be liable to Customer (or any person claiming under or through Customer) for any damages of any nature whatsoever, whether in contract, tort (including negligence) or otherwise.

9.2 Exceptions. The aforesaid limitations of liability shall not apply to any mandatory statutory liability, liability for culpably caused injuries of life, body or health, and any other liability which may not be excluded under applicable law. In addition, such limitations of liability shall not apply if and to the extent Software Provider has assumed a specific guarantee.

9.3 Compensatory Damages. Section 9.1 and section 9.2 shall apply accordingly to Software Provider`s liability for compensatory damages, including pecuniary and non-pecuniary losses and futile expenses.

9.4 Customer’s obligation to avert and reduce damages. Software Provider is not able to restore individual customer files in case of data loss. Customer shall therefore, be obliged to take adequate measures to avert and reduce damages, in particular Customer shall be obliged to create backup copies of any its data stored in connection with the Software on a regular basis.

10. Audits

10.1 Right to Audit. In order to examine whether Customer complies with the provisions of this Agreement, Software Provider or a third party being appointed by Software Provider shall within Customer`s business hours and without observing an announcement period be entitled, to audit Customer`s premises to the extent reasonably required.

10.2 Audit Costs. Solely in case a violation of this Agreement is being detected in the course of such Audit, the Software Provider`s reasonable costs for conducting such Audit shall be borne by Customer.

11. General Provisions.

11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

11.2 Notices. Unless the terms of this Agreement explicitly require any other form, all notices under this Agreement must be given at least in textual form. Software Provider and Customer will deliver such notices by email to the address(es) and contact person(s) indicated by Customer and Software Provider upon registration of Customer’s account with Software Provider or to such other address(es) of which the parties may notify each other. The preceding sentence applies accordingly if the notices are given in writing.

11.3 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party.

11.4 Subcontractors. Software Provider may commission subcontractors with the providing of the Software.

11.5 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld).

11.6 Governing Law. This Agreement shall be governed exclusively by the Laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict of laws principles that would require the application of the laws of another jurisdiction. The parties expressly exclude the application of the Convention on the International Sale of Goods.

11.7 Venue. The parties irrevocably submit to the exclusive jurisdiction of the Courts of the Province of Ontario with respect to any dispute or claim that arises out of or in connection with this Agreement. Each party consents to jurisdiction in such courts and waives any claims of inconvenient forum.

11.8 Further Provisions. This Agreement constitutes together with the applicable Order, the Disclaimer Section and the references to the information of use and other referenced manuals the entire agreement between the parties with respect to the subject matter hereof. There are no agreements, representations, warranties, promises, covenants, commitments, or undertakings other than those expressly set forth herein. This Agreement supersedes all prior agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. Irrespective of any language to the contrary in an Order, in case of any contradictions between the provisions of an Order and the provisions of this Agreement, the latter shall prevail. The same shall apply correspondingly in case of any contradictions between the provisions of the Disclaimer Section and the provisions of this Agreement. Furthermore, irrespective of any language to the contrary in an Order, references to or incorporation of other documents than to this Agreement in the Order, shall not be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

11.9 Representation. Customer agrees that its use of the Software does not constitute non-compliance with any Law or regulation. Customer acknowledges that it has an independent duty to comply with any and all Laws applicable to it.

Section B – Subscription Agreement

applicable for

PROFIS Detection
PSA 200
PROFIS Ferroscan MAP
PROFIS Connect
PROFIS Layout Field
PROFIS Layout Office
PROFIS AutoCAD Field Point
PROFIS Revit Field Point
PROFIS Point Creator

(each one hereinafter referred to as the “Software”)

This Subscription Agreement is effective as of the date of your subscription order (“Order”) of the respective Software ("Effective Date"), by and between Hilti (Canada) Corporation, Mississauga, Ontario ("Software Provider") and you ("Customer"). Whereas, Software Provider grants to Customer the right to use the Software, Updates and Upgrades to the Software and other related services (hereinafter altogether referred to as “Software”) through a subscription service, Customer desires to subscribe to such service, and this business relationship and the allocation of responsibilities are set forth in this Agreement, the parties agree as follows:

1. Customer’s Use of the Software.

1.1 Software Provider Obligations. Software Provider shall make the Software as described in section 1.2 of this Agreement, available to Customer pursuant to this Agreement. Software Provider may continually update and improve the Software; any such Updates are included in the Agreement, where “Updates” means software that remedies Defects in the Software and/or that may include minor improvements of the previous Software. In addition to Updates, the Software Provider may offer Upgrades to the Software which are also subject to the Agreement, where “Upgrades” means new facilities, capabilities or functionalities of the Software. It shall be Software Provider’s sole determination whether an improvement is deemed an Update or an Upgrade.

1.2 Software Description. Software Description and the Software`s features are being made available to Customer on Software Provider`s websites as being amended by Software Provider from time to time. Software Provider ensures to remain the essential functions of the Software relevant to the Customer for the Term of this Agreement (downwards compatibility).

1.3 System Requirements. The operation or use of the Software by Customer may require certain System Requirements as specified and updated from time to time on the Software Provider`s websites, where solely Customer shall be responsible to ensure that the System Requirements are met. The provision of System Requirements does not form part of Software Provider’s obligations under this Agreement.

1.4 Customer Obligations. Customer is responsible for its and the Authorized User’s use of the Software and his/her compliance with this Agreement, where “Authorized User” shall mean Customer or its employee as being identified by Customer towards Software Provider to be granted to use the Software according to section 3.4. Customer shall use reasonable efforts to prevent unauthorized access to, or use of, the Software by not authorized users (i.e. other employees, third parties, etc.) through its systems, and notify Software Provider promptly of any such unauthorized access or use.

1.5 Prohibited Activities. Customer shall use the Software solely for its internal business purposes and shall not: (i) license, sublicense, decompile, sell, resell, rent, lease, transfer, assign, distribute, time share, offer, or otherwise make the Software available to any third party; (ii) use the Software in violation of applicable local, state, national and/or foreign law, treaties, and/or regulations applicable to a respective party.

2. Fees, Payment & Taxes.

2.1 Fees. In consideration of Software Provider providing the Software, Customer will pay to Software Provider the Fees as agreed upon in the “Order” being issued by Customer to Software Provider, where “Fees” means all charges to be paid by Customer to Software Provider for providing the Software. During the term of the Agreement Software Provider may change Fees only in accordance with section 12 below. Customer shall pay all Fees as agreed upon in the Order and in accordance with this section 2. Except as otherwise provided in the Order, all Fees are quoted and payable in EUR.

2.2 Monthly/Yearly Subscription Fee. According to the Order Software Provider will invoice Customer on a monthly or yearly basis:

- Monthly Subscription Fee. Software Provider will invoice Customer in advance at the first day of each calendar month for the providing of the Software in such full calendar month.

- Yearly Subscription Fee. Software Provider will invoice the annually recurring Yearly Subscription Fee on or about the Effective Date, and annually thereafter.

2.3 Invoices. All invoices are payable within fourteen (14) days of receipt of the invoice. Upon request the Software Provider will provide any information, documents and records to Customer required for Customer to verify the correctness of any invoices.

2.4 Default Payments. Upon Customer’s default of payment, Customer shall, in addition to paying the outstanding amount, pay default interest amounting to the lesser of: one (1) percentage points per month of the outstanding amount; or the highest amount allowed by law. This shall not affect the right of the Software Provider to claim any higher damages under applicable law.

2.5 Taxes. Customer is responsible for paying all sales, use, and value-added taxes associated with its receipt of the Software hereunder, but excluding taxes based on Software Provider's gross receipts, net income or property. If Software Provider has an obligation to pay or collect taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Software Provider with a valid tax exemption certificate authorized by the appropriate taxing authority.

3. Proprietary Rights.

3.1 © Hilti Corporation 2015. Hilti Corporation, Feldkircherstrasse 100, 9494 Schaan, Liechtenstein, exclusively and unrestrictedly retains sole ownership, and reserves all rights, title and interest and all Intellectual Property Rights (as such term is defined in section 3.2) to the Software (including Updates and Upgrades), unless explicitly otherwise stated in this Agreement. Software Provider is entitled by Hilti Corporation to grant to Customer rights to the Software (including Updates and Upgrades) according to the terms and conditions of this Agreement.

3.3 Reservation of Rights. Subject to the limited rights expressly granted hereunder, no rights are granted to Customer hereunder other than as expressly set forth herein. Customer reserves all rights, title and interest in and to its data, other non-Software Provider software and other intellectual property to which Software Provider may from time to time have access in the course of providing the Software.

3.4 Grant of Rights. Software Provider grants to Customer a non-exclusive, single (for one Authorized User), non-transferable right to download and use the Software in accordance with and during the term of this Agreement. During the Term of this Agreement this right of use encompasses the right to make available to and use the Software by Customer or to have it used by the Authorized User as being identified by Customer towards Software Provider. Additional users are not covered by this right or this Agreement.

3.5 Manuals and Documentation. Software Provider will provide user manuals and documentation for the Software that will be made available within the Software, which will describe the Software`s functions and allow Customer to make use of the Software in accordance with this Agreement. Software Provider will endeavor to update the manuals and documentation in due course after a change of the Software so requires.

3.6 Restrictions. Customer shall not (i) modify, copy or create any derivative works based on the Software; (ii) frame or mirror any content forming part of the Software, other than on Customer's own intranets for its own internal business purposes; (iii) reverse engineer or decompile the Software or any part thereof; (iv) access the Software in order to build any commercially available product or service; (v) copy any features, functions, interfaces or graphics of the Software or any part thereof; or (vi) use the Software in any manner that exceeds the scope of use permitted herein.

4. Confidentiality.

5. Access of Software & Data Back-Up.

5.1 Access of Software. Software Provider will make the Software available to Customer for downloading via Software Provider`s websites. Software Provider will not have any delivery obligation over and beyond that; in particular, Software Provider will not install the Software on Customer`s premises or will not provide Customer with the source code of the Software. All implementation services to technically prepare the Software for operational use (i.e. setting up the Software to meet technical system requirements and technical parameterization of the Software) shall solely be done by Customer. Software Provider may from time to time provide new Updates of the Software, where it is Customer`s sole responsibility to regularly check whether a new Update is available for downloading. When an Update is released, all previous Software versions shall automatically and with immediate effect lose their validity, and Customer shall indemnify Software Provider from any claims associated with its continued use of such previous Software.

5.2 Business Customers. The Software is solely intended to be used on premises by business customers and not by private end consumers.

5.4 Disclaimer.

Prior to using the Software Customer has been informed by Software Provider via the Software`s “Disclaimer Section” how to use the Software and assumptions to be considered by using the Software and has or herewith gives its informed consent to observe to the strictest in addition to the provisions of this Agreement to the terms and conditions as stated in the Disclaimer Section; particularly, but not limited to such terms of the Disclaimer Section include (i) references to use Software Provider`s products according to the applicable information of use, (ii) references to use the Software according to the User Manual contained within the Software and (iii) the strong recommendation that all results generated with the Software and other Software Provider`s products be confirmed with a professional designer and/or structural engineer to ensure that the results and designs are suitable and adequate for Customer`s specific jurisdiction and project requirements.

6. EXCLUSION OF WARRANTY.

EXCEPT AS SET FORTH IN SECTION 5.1, SERVICE PROVIDER HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE SOFTWARE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. SERVICE PROVIDER DOES NOT WARRANT THAT THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER IS SOLEY RESPONSIBLE FOR ITS SELECTION AND USE OF THE SOFTWARE.

7. Remedies in case of Defects.

7.1 Rectification. Customer shall notify Software Provider without undue delay of any alleged Defects (as such term is defined in section 7.2) of the Software in writing, including a description of the alleged Defect. Software Provider shall endeavor to cure all Defects within a reasonable time period; Software Provider may decide at its sole discretion whether to cure a given Defect by means of repair or replacement delivery. If Software Provider is unable to cure the Defect within a reasonable time period, the Software Provider may (i) reduce the Fees for the Software or (ii) terminate this Agreement and refund the Fees actually paid for the defective Software.

8. User Manual

The User Manual on how to use the Software can be accessed within the Software.

9. Limitation of Liability.

9.1 Limitation of Liability. Software Provider’s and its affiliate’s liability for damages in any way arising from the installation or use of the Software, or any output from the Software, irrespective of its legal ground, shall be limited to the amount paid by Customer for the Software. In no event shall Software Provider or its affiliates be liable for direct, consequential, indirect, special, liquidated, delay, or any other damages, even if attributable to their negligence.

9.2 Customer’s obligation to avert and reduce damages. Software Provider is not able to restore individual customer files in case of data loss. Customer shall therefore, be obliged to take adequate measures to avert and reduce damages, in particular Customer shall be obliged to create backup copies of any its data stored in connection with the Software on a regular basis.

10. Audits

11. Term & Termination.

11.1 Term. This Agreement shall have an indefinite term, whereas "Term" means the period starting from the Effective Date until the Agreement will have been terminated.

11.2 Termination. Each party may terminate this entire Agreement in writing upon observing a notice period of 60 days prior to the end of a calendar month.

11.3 Termination for Cause. In addition, each party may terminate this Agreement for cause with immediate effect in the event of the other party's breach of any material term of this Agreement and failure to cure such breach within 30 days following notice of such breach.

11.4 Consequences of Termination of the Agreement. Upon any termination, Software Provider shall refund Customer any prepaid Fees for the period of time for which the Software would have had to be provided after the effective date of termination. Upon the effective date of termination, Customer shall immediately cease accessing and otherwise utilizing the Software. Termination shall not relieve Customer of the obligation to pay any Fees accrued or due and payable to Software Provider prior to the effective date of termination (subject to Customer’s statutory rights to withhold payments disputed in good-faith).

11.5 Surviving Provisions. Any termination of this Agreement shall not affect any accrued rights, remedies, obligations or liabilities of either Party, or any rights or remedies arising from or in connection with such termination, as set forth in this Agreement, nor shall it affect the effectiveness of provisions of this Agreement which explicitly or by nature of business remain in force after the termination of this Agreement.

12. Changes to the Agreement and/or Fees

12.1 Changes to the Agreement. Software Provider reserves the right to change the Agreement and/or the Fees ("Change"). Software Provider will notify Customer about the Change with at least six (6) weeks prior notice (“Change Notification”). The Customer has the right to object to the change with two (2) weeks prior notice before the change is intended to become effective ("Change Effective Date"). If Customer does not object in due time, this shall be deemed as Customer’s acceptance of the Change and the Change shall become effective at the Change Effective Date. If Customer objects in due time, Software Provider may choose to either continue the Agreement with Customer under the terms of this Agreement without the Change, or, notwithstanding 11.2 above, to terminate the Agreement with effect at the Change Effective Date. Software Provider will specifically inform Customer about Software Provider’s termination right, the notice period for Customer’s objection, the Change Effective Date and the consequences of not objecting to the Change Notification.

12.2 Changes to Fees. Fees as agreed upon in the respective Order are fixed for a period of twelve (12) months following the Effective Date of this Agreement and Software Provider may not increase the Fees within this twelve (12) months period. After the lapse of the initial twelve (12) months period, Software Provider may increase the Fees unilaterally by no more than five percent (5 %) annually without having to abide by the procedure for a Change as set forth in section 12.1 above and without Customer having an objection right.

13. General Provisions.

13.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

13.2 Notices. Unless the terms of this Agreement explicitly require any other form, all notices under this Agreement must be given at least in textual form. Software Provider and Customer will deliver such notices by email to the address(es) and contact person(s) indicated by Customer and Software Provider upon registration of Customer’s account with Software Provider or to such other address(es) of which the parties may notify each other. The preceding sentence applies accordingly if the notices are given in writing.

13.3 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

13.4 Subcontractors. Software Provider may commission subcontractors with the providing of the Software.

13.5 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld).

13.6 Governing Law. This Agreement shall be governed exclusively by the Laws of Texas, USA.

13.7 Venue. The venue for adjudication of any disputes relating to this Agreement shall be the competent court being applicable at the registered seat of Software Provider. However, Software Provider shall be entitled to file actions at the court having jurisdiction at Customer’s place of business. Each party consents to jurisdiction in such courts and waives any claims of inconvenient forum.

13.8 Further Provisions. This Agreement constitutes together with the applicable Order, the Disclaimer Section and the references to the information of use and other referenced manuals the entire agreement between the parties with respect to the subject matter hereof. There are no agreements, representations, warranties, promises, covenants, commitments, or undertakings other than those expressly set forth herein. This Agreement supersedes all prior agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted, and entered into no earlier than the Effective Date. Irrespective of any language to the contrary in an Order, in case of any contradictions between the provisions of an Order and the provisions of this Agreement, the latter shall prevail. The same shall apply correspondingly in case of any contradictions between the provisions of the Disclaimer Section and the provisions of this Agreement. Furthermore, irrespective of any language to the contrary in an Order, references to or incorporation of other documents than to this Agreement in the Order, shall not be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.

13.9 Representation. Customer agrees that its use of the Software does not constitute non-compliance with any Law or regulation. Customer acknowledges that it has an independent duty to comply with any and all Laws applicable to it.