Scope and applicability. These General Terms and Conditions ("GTC") shall govern the contractual relationships between the customer ("Customer") and InfoSec Global Inc.("ISG"). The GTC shall govern the delivery of products("Products") and the provision of services ("Services"). They shall apply to all Products and Services which are sourced from ISG by the Customer. In order for the GTC to apply, it is not necessary that they are referred to in the Contract. Any general terms and conditions of the Customer shall be excluded.
Conclusion of the Contract. Proposals by ISG ("Offer") shall be valid for a duration of 30 days, provided that the Offer does not specify a different period of validity. The Offer can stipulate additional provisions concerning its validity. A contract ("Contract") shall be concluded as follows: a) by issuance of an order confirmation by ISG, b) by mutual execution of a contractual document or c) by issuance of a purchase order by the Customer based on an Offer by ISG. If performance by ISG requires a governmental permit, the Contract shall only enter into effect once such permit has been granted. In case of contradictions between the Contract and the GTC, the terms of the Contract shall have priority.
Products and Services by ISG. The Products and Services of ISG – including ISG’s obligations in relation thereto– are specified in the Contract in an exhaustive manner. No Products or Services shall be owed by ISG other than the Products and Services explicitly indicated in the Contract.
Confidentiality. Either party will keep the other party’s Confidential Information confidential and use the Confidential Information only in accordance with the Contract. Confidential Information may be disclosed to only those who have a need to know such Confidential Information (an “Authorized User”). Confidential Information will not be transferred or disclosed to any third party without disclosing party’s prior written permission and without such third party having a contractual obligation to keep such Confidential Information confidential in accordance with the terms hereof. ISG and the Customer shall ensure that its employees, associates and subcontractors are also bound to confidentiality; such confidentiality obligations shall at least correspond to this clause of the Contract. This confidentiality obligation set out herein shall survive the termination of the Contract as long as an interest in confidentiality by ISG or the Customer exists. "Confidential Information" includes: (i) all non-public information and material related to the business or technology of a party whether in oral, written, graphic or machine-readable form, in the course of or in connection with providing the Products and Services here under, including without limitation information about a party’s past, present and future suppliers, vendors, business strategies, methodologies, trade secrets, pricing, Software, business relationships, client lists and information regarding clients, and personal information of a party’s employees or customers; (ii) Proprietary Materials; and (iii) all notes, analyses and studies prepared by a party incorporating any Confidential Information. Information that is generally known or lawfully acquired by the parties independently of the contractual relationship shall not be deemed to be Confidential Information. Statutory disclosure requirements are reserved.
Data Projection. Data Protection InfoSec maintains a commercially reasonable security program that is designed to: (a) ensure the security and integrity of Customer data provided by or on behalf of Customer to InfoSec in connection with the Services (“Customer Data”); (b) protect against threats or hazards to the security or integrity of Customer Data; and (c)prevent unauthorized access to Customer Data.
Suspension. ISG reserves the right to suspend Customer’s (or any Authorized User’s) access to the products and Services immediately: (a) if Customer breaches the confidentiality and data projection provisions of this Agreement, or breaches any other provision and fails to correct that breach within the applicable cure period; or (b) as it deems reasonably necessary to respond to any actual or potential security or availability concern that may affect InfoSec or its customers or users.
Obligations of the Customer. The Customer shall, in a timely manner, create the conditions necessary for ISG to deliver the Products and perform the Services in accordance with the terms of the Contract, including provision of all necessary information by the Customer so that ISG can effect performance. If the Customer fails to fulfil its obligations, ISG may – after granting an extension of time in writing – withdraw from the Contract and claim damages, it being understood that ISG retains and reserves any and all other rights. The Customer may use the Products and Services of ISG only in accordance with their purpose. In this regard, the Customer is obligated to observe any and all regulatory provisions which are related to the usage of the Products and the Services. Furthermore, Customer is solely responsible for: (a) all uses of the Products and Services under its account (whether or not authorized); (b) all acts and omissions of Authorized Users, including ensuring that it and its Authorized Users only use the Products and Services in compliance with this Agreement and all Applicable Law (any breach of this Agreement by an Authorized User shall be deemed a breach by Customer); (c) the entry, accuracy, integrity and legality of Customer Data and the means by which it acquires and uses such Customer Data; (d) using commercially reasonable efforts to prevent unauthorized access to or use of the Products and Services (and promptly notifying ISG in the event of any such unauthorized access or use); and (e) determining whether the Products and Services are suitable or sufficient for its business purposes. ISG’s relationship is with Customer and not individual Authorized Users or third parties using the Products and Services through Customer, and Customer will address all claims raised by its Authorized Users directly with ISG.
Third-Party Services. Customer’s use of third-party products or services that are not licensed to Customer directly by ISG (“Third-Party Services”) shall be governed solely by the terms and conditions applicable to such Third-Party Services, as agreed to between Customer and the third party. ISG does not endorse or support, is not responsible for, and disclaims all liability with respect to Third-Party Services, including the privacy practices, data security processes and other policies related to Third-Party Services. Customer agrees to waive any claim against ISG with respect to any Third-Party Services. Customer may enable integrations between the Services and Third-Party Services (each, an “Integration”). By enabling an Integration between the Services and its Third-Party Services, Customer is instructing ISG to share the Customer Data necessary to facilitate the Integration. Customer is responsible for providing all instructions to any Third-Party Service provider relating to Customer Data. ISG and Third-Party Service providers are not sub-processors of each other.
Dates. Dates and terms of delivery concerning ISG as debtor are only guidelines, unless they are specified as being binding in the Contract. Dates and terms of delivery concerning ISG as debtor are extended appropriately, if the Customer or third parties are behind on the works and acts to be performed by them or if obstacles arise which ISG – despite application of due care – is unable to avert, such as the absence of permissions, the issuance of governmental restrictions on imports and/or exports and similar measures and in case of a Force Majeure Event. ISG is obliged to inform the customer about such delays in a reasonable manner.
Prices and additional costs. The Customer shall pay the price specified in the Contract for the delivery of the Products and provision of the Services. Unless agreed to the contrary, the price is exclusive of any applicable value-added tax. Services shall be remunerated on a time and material basis at the rates of ISG in force at the respective time, unless agreed to the contrary.
Invoicing and Payment. Subject to an agreement to the contrary, the remuneration for the Products and Services is invoiced by ISG at the time of delivery of the Products or, in case of Services, monthly in arrears. Payment shall be effected at the domicile of ISG without deduction of any discounts, expenses, charges, fees, duties and the like. Invoices of ISG shall be due and are to be paid within30 days from the date of the issuance of the invoice. Advance payments to be paid at the time of the conclusion of the Contract shall be due and payable immediately. If the invoice is not paid when due, the Customer shall be in default of payment without further notice and shall owe default interest in the amount of 5% p.a. If the Customer is in default with respect to a payment or if ISG reasonably anticipates that the customer will fail to make payments, ISG may, without prejudice to any of its other claims and rights, suspend further execution of the Contract or withhold performance, until outstanding payments are made, new terms of payment and delivery or, as the case may be, securities are agreed. ISG's right to terminate the Contract in accordance with its terms remains reserved.
Ownership and Intellectual Property Rights. Customer acknowledges that the Products and Services contain proprietary materials, software ("Software") and technical information of ISG or, as the case may be, its licensor(s)(collectively "Proprietary Materials") and that ownership of all patents, copyrights, mask work rights, trademarks, trade names and other intellectual property rights in and to or relating to the Products or Services and the Proprietary Materials (collectively, the "Intellectual Property Rights") shall remain with ISG or, as the case may be, its licensor(s).The Contract does not – subject to an agreement to the contrary – constitute a sale of any Proprietary Materials or any Intellectual Property Rights to the Customer; however, Customer shall have the limited right to use Proprietary Materials in the course of using the Products or receiving the Services hereunder, all in accordance with the terms of the Contract. The Customer is obligated to cooperate with respect to measures which are necessary to safeguard ISG's Intellectual Property Rights. Should the Costumer become aware of measures – or threats of such measures – that may encumber or threaten the Intellectual Property Rights of ISG, the Customer shall inform ISG in writing without delay.
License and Restriction. The terms "sell" and "buy", and any similar terms, as used in the Offer or the Contract with respect to any Proprietary Materials, shall mean that ISG grants to the Customer a non-exclusive, non-transferrable limited right to use such Software (in object code form only) and/or other Proprietary Materials together with Products or Services provided by ISG, for the sole purpose of using such Products or Services, subject to the provisions in any separate license agreement or other document (relating to such Software and/or other Proprietary Materials) supplied by ISG to Customer, if any. For Software of third-party manufacturers, their license terms shall apply exclusively. Subject to an agreement to the contrary, the right to use shall neither extend to the source code of the Software nor to its independent editing. Customer shall, in particular, not reverse engineer, decompile, disassemble, translate, copy, modify, alter or otherwise change any Product or Service, or part thereof(including without limitation any Proprietary Materials, including any Software or documentation provided by ISG), without the prior express written consent of ISG.
For further clarity, the Customer will not, and shall ensure that any Authorized Users will not, directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, copy, create derivative works of or otherwise create, attempt to create or derive the source code, object code or underlying structures, ideas or algorithms of the Products and Services or any data related thereto; (b) attempt to probe, scan or test the vulnerability of the Products and Services, breach the security or authentication measures of the Products and Services without proper authorization, or render any part of the Products and Services unusable; (c) use or access the Products and Services to develop a product or service that is competitive with ISG’s products or services or engage in competitive benchmarking; (d) share, transfer, distribute, resell, lease, license, sublicense, make available or otherwise offer the Products and Services on a standalone basis; (e) remove any proprietary notices from the Products and Services or related Documentation; (f) provide any infringing, offensive, fraudulent or unlawful content in connection with the Products and Services;(g) use the Products and Services or related materials in any manner or for any purpose that violates this Agreement or Applicable Law, or infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person (collectively, the “Restrictions”).
Markings. Customer shall not remove or destroy any copyright notices, proprietary markings or confidentiality notices placed upon, contained within or associated with any Product or Service provided by ISG. Customer shall include copyright notices and other proprietary markings or confidentiality notices on the Products and Services created or distributed by Customer which uses the Products or Services provided by ISG hereunder.
Support Services. ISG shall provide Services relating to support ("Support Services")only to the extent so agreed in the Contract (or, in particular, any support and maintenance appendix related thereto). ISG shall have no obligation to render Support Services becoming necessary because(1) the Product has been improperly installed or tested, other than by ISG; (2)the Product has been altered, modified or adjusted without ISG's prior approval; (3) the Product has been subjected to physical, electrical or general environmental conditions not conducive to the proper functioning of the Product; or because (4) of Force Majeure Events, neglect, misuse, failure of electrical power, failure of air conditioning, failure of humidity control, transportation of the Product, or causes other than normal use.
Force Majeure. ISG shall not be responsible for any failure to fulfil its obligations hereunder due to events beyond its reasonable control and as long as such events continue, such events including without limitation acts or omissions of government or military authority, disruptions of public power supply and the communications and transportation infrastructure, acts of God, shortages of materials, transportation delays, earthquakes, fires, floods, extraordinary weather events, labour disturbances, riots, epidemics, nuclear and chemical accidents, sabotages, terrorist attacks or wars (in each case a "Force Majeure Event"). In case of a lasting Force Majeure Event, ISG may terminate the Contract retroactively as per the date the Force Majeure Event started to occur. Products delivered and Services rendered up until this date shall be remunerated.
Disclaimer of Warranty. Warranty obligations of ISG (if any) or, as the case may be, warranty rights of the Customer (if any) are specified in the Contract in an exhaustive manner; thus, any statutory warranty obligations of ISG or, as the case may be, statutory warranty rights of the Customer are excluded. Except as expressly agreed to the contrary in the Contract, ISG makes no representation or warranty of any kind, express or implied (including with respect to the merchantability, fitness for a particular purpose and non-infringement); any and all warranty is disclaimed in full. In particular, ISG does not represent and warrant that the Products are error free and will function without problems or interruption.
Limitation of Liability.Subject to the limitation of liability included herein, ISG shall be liable fordirect damages suffered by the Customer due to a culpable breach of theContract by ISG – regardless of the legal basis – for an amount up to the netamounts paid by the Customer to ISG under the Contract during the twelve-monthperiod preceding the breach of the Contract by ISG. ISG shall not be liable forany indirect, consequential or incidental damages (including, in particular,loss of profits, unrealized savings, recourse claims asserted by third parties,damages resulting from interruptions of operations etc.) and damages sufferedby third parties. The limitation of liability set forth herein shall not applyin case of damages caused intentionally or by gross negligence of ISG.
Import/Export Restrictions and Indemnification by Customer. Products provided by ISG may include cryptographic technology and shall not be exported, imported, used, transferred, or re-exported except in compliance with any and all applicable laws and regulations of the relevant government authorities. Any Products and Services provided by ISG shall not be used in the development, production, handling, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or their missile delivery systems, or of materials or equipment that could be used in such weapons or their missile delivery systems or resell or export to anyone or any entity involved in such activity. The Customer shall hold ISG harmless from any and all damages resulting from Customer's failure to observe any and all regulatory provisions and the obligations set out herein and the fact that third parties (including the authorities) assert claims against ISG as a consequence thereof.
Termination. ISG may terminate the Contract in case of (i) non-payment of Services or Products after 30 days of such amounts.
Final Provisions. Changes of or amendments to the Contract or the GTC require the written form and the signature by both parties. The Customer does not have a right to set-off, unless its claims are acknowledged by ISG inwriting or finally established through judicial proceedings. The invalidity or voidability of any provision or any provisions of a Contract do not render the other provisions invalid. In case of such invalidity or voidability, the parties seek to replace the invalid or voidable provision with a different valid and enforceable provision, which resembles as close as possible the legal and economic content of the replaced provision. Transfer of a contractual relationship or the assignment of claims by the customer requires the written consent of ISG.
Governing Law and Jurisdiction. The Contract and any occurrences regarding property law relating to the Contract shall be subject exclusively to the material laws of the Country defined in the Agreement, under the exclusion of the United Nations Convention dated 11 April 1980 on the International Sale of Goods. The courts defined in the Agreement shall have exclusive jurisdiction with respect to any and all disputes arising from or in connection with the Contract. Moreover, ISG shall be permitted to assert its own claims at the place of domicile of the Customer or any other place available by applicable law (“Applicable Law”).