1.2. “Additional Components” are the UXP Connector, UXP Portal, UXP Certificate Authority, UXP Time-Stamping Service and potential other components of the UXP Technology which may be added to the Core Components.
1.3. “Affiliate” means any legal entity that directly or indirectly owns, is directly or indirectly owned by, or that is directly or indirectly under common ownership with a Party.
1.4. “Company” means Cybernetica AS, an R&D-intensive ICT company established and located in Estonia whose contact details you may find at www.cyber.ee
1.5. “Core Components” are the UXP Registry, UXP Security Server and UXP Monitoring Server as the central interdependent components of the UXP Technology which are a prerequisite for setting up and running a UXP Deployment.
1.6. “Copyrights” means the economic rights of author’s rights (copyrights) and neighbouring rights (including sui generis database rights).
1.8. “Customer Data” means all information processed or stored on computers or other electronic media by any participants of a UXP Deployment.
1.9. “Documentation” means user manuals, technical guidelines and other written documents, as well as any updated, improved or modified version(s) of such documents, which (a) describe a component of UXP Technology, its operation and matters related to its use, and (b) are delivered together with the relevant component or may be accessed online at the Company’s web site at https://cyber.ee/uxp/.
1.10. “End-User” or “you” is the natural person who is authorised to use the UXP Deployment individually or on behalf of a Member, the Governing Authority or a Trust Service Provider.
1.11. “Governing Authority” or “you” is the entity who coordinates communication between Members in a UXP Deployment.
1.12. “Member” or “you” is an entity with an autonomous information system who has joined a UXP Deployment.
1.13. “Party” or “Parties” means (a) you or the Company individually or (b) you and the Company jointly, as the context may require.
1.14. “Price List” means the current standard prices for the UXP Technology as set by the Company.
1.15. “Private Data” means all values that are considered personal data, trade secrets, confidential data, or otherwise sensitive in the context of a UXP Deployment.
1.16. “Service” means a process for accessing Customer Data in the Service Provider’s information system.
1.17. “Service Agreement” means the agreement between the Service Provider and the Service Client, which contains the access rules, Security Level Agreement, data processing requirements, security requirements and other terms for using a Service.
1.18. “Service Client” means a Member using a Service.
1.19. “Service Level Agreement” means the agreement between the Service Provider and the Service Client, which regulates the particular aspects of the Service such as its quality, availability, issue management and other responsibilities.
1.20. “Service Provider” means a Member providing a Service.
1.22. “Trust Service Provider” is the entity who provides certification and time-stamping services in a UXP Deployment.
1.23. “UXP Technology” means Unified eXchange Platform, the secure data exchange software developed by the Company, as well as any updated, improved or modified version(s) of the UXP Technology.
1.24. “UXP Deployment” means an instance of Core Components of the UXP Technology, where each Core Component functions only as a part of a set and not as an individual solution. Each additional set of functioning Core Components a new UXP Deployment.
(a) installing, having installed, subscribing to, or starting to use any components of the UXP Technology,
(d) paying the invoice received for purchasing and/or licensing any components of the UXP Technology, whichever of those events occurs first.
2.5. The Company has the right to unilaterally modify the Price List without cause any time.
(a) changes in applicable laws or in their interpretation by the courts and other competent authorities which affect the UXP Technology;
(b) introduction of updates or upgrades in the UXP Technology;
(c) feedback and demands from Members and Governing Authorities;
(e) new technological developments which affect the UXP Technology, including a resulting need to enhance the protection of Private Data and improve the quality of the UXP Technology;
(f) changes in the organisation, ownership or management of the Company.
3.1. For each UXP Deployment, the Company shall:
(a) supply the software and licenses for the Core Components and Additional Components as well as provide related services to the Governing Authority as agreed in a Customer Agreement between the Company and the Governing Authority.
(c) provide you with updates and upgrades for the Core Components and Additional Components in accordance with its product development roadmap available online at the Company’s web site at https://cyber.ee/uxp/.
4.1. For each UXP Deployment that it governs, the Governing Authority must:
(a) install, configure and maintain a UXP Registry or a UXP Monitoring Server or choose a hosting service provider to do the same on behalf of the Governing Authority, in order to set up the UXP Deployment.
(b) analyse and decide upon the general setup and configuration of the UXP Deployment.
(f) maintain and distribute the registry of Members and Trust Service Providers and the necessary technical specifications by means of the UXP Registry.
(g) create, distribute and enforce standardized security policies in the UXP Deployment (e.g. requirements for user authentication, security requirements for joining the UXP Deployment, procedures for managing membership of the UXP Deployment, defining and assigning security categories to Members etc).
(h) create, distribute and enforce standardized privacy policies in the UXP Deployment (e.g. requirements for keeping Private Data secret), unless the Governing Authority has delegated this task to Service Providers.
(i) optionally, maintain the directory of Services offered by Service Providers.
(j) provide technical support to Members.
(k) designate the location where Members can get access to the UXP Security Server software (in case of hosted copy) or install it as part of their information systems (in case of local copy);
(l) provide Members with the necessary guidelines and specifications for joining the UXP Deployment and duly integrating their UXP Security Servers with the UXP Deployment.
(m) optionally, define the templates for Service Agreements and Service Level Agreements.
(n) act as an arbitrator in case of disputes between Members in the UXP Deployment.
(o) monitor the UXP Deployment in order to detect and debug possible problems and collect data for planning purposes.
(p) choose and conclude relevant agreements with a Trust Service Provider(s).
(q) define a list of Trust Service Providers who are eligible to provide their services in the UXP Deployment.
(r) decide and coordinate the creation of a federation relationship with another UXP Deployment, if necessary.
5.1. For each UXP Deployment where it participates, the Member must:
(a) install, configure and maintain the UXP Security Server, or choose a hosting service provider to do the same on behalf of the Member, to connect its information system to the UXP Deployment.
(c) pay for the licenses granted and services provided to it under the Customer Agreement in accordance with the Price List or under a separate agreement between the Member and the Governing Authority.
(d) choose and conclude relevant agreements with Trust Service Providers.
(e) subject the Member’s UXP Security Server to at least the same security requirements that apply to the Member’s information system which provides or processes Customer Data in the UXP Deployment.
5.2. For each UXP Deployment where it participates, the Service Provider must:
(a) design and implement Services.
(b) make Services available to Service Clients and control access to Services, including maintain and enforce access control list for each Service and limit access to Members who have been assigned the required security category.
(c) enter into Service Agreements with Service Clients whereby the Service Provider undertakes to provide the Service and Customer Data in accordance with the Service Level Agreement concluded with the Service Client.
(d) set data processing requirements and security requirements for each Service.
(e) create, distribute and enforce privacy policies in the Service (e.g. requirements for keeping Private Data secret).
5.3. For each UXP Deployment where it participates, the Service Client must:
(a) enter into a Service Agreement with the Service Provider whereby the Service Client undertakes to use the Service and process the received Customer Data according to the data processing requirements and security requirements set by the Service Provider.
(b) authenticate End-Users and apply a suitable access control policy at the intra-organisational level which are compliant with all security requirements applicable in the UXP Deployment.
6.1. License Grant. If you purchase a license for accessing or using a Core Component or an Additional Component in a UXP Deployment, the Company will hereby grant you, subject to your timely payment of the relevant license and service fees and compliance with the terms and conditions of your Customer Agreement as well as the “Limitations” in this Section below and the “General Restrictions” in the next Section below, a non-transferable, non-exclusive and revocable license to use your licensed component of the UXP Technology and exercise the Copyrights attached thereto as follows:
(a) download, install and execute copies of your licensed component of the UXP Technology as made available by the Company, whether locally on your premises or hosted by a third party as your agent.
(b) load data into your licensed component of the UXP Technology as well as display, view or extract output results from it or otherwise operate any portion of it.
(c) generate and publish Results (as defined below), subject to conditions in this Section below.
(d) build and publish Applications (as defined below), subject to conditions in this Section below.
6.3. Results. When accessing and using the Core Component or Additional Component and the related Documentation, you may end up (a) producing new data by means of learning from the Documentation and running the Core Component or Additional Component, (b) using that data to create new information (e.g. databases, analyses, whitepapers, research papers, publications etc) and (c) building new applications for using that information (e.g. software applications, systems of software, business models, value chains etc), all of which are herein referred to collectively as “Results”. You are free to create any Results. You shall own the Results, as well as all Copyrights attached thereto. However, if you include or interface any parts or versions of any components of UXP Technology in your Results, the Company shall retain ownership of any and all parts and versions of such components.
6.4. Applications. If you purchased a license to access and use an application programming interface in order to create software applications for using a UXP Deployment (herein “Applications”), you may do so. You shall own the Applications, as well as all Copyrights attached thereto. However, Company shall retain ownership of any and all parts and versions of any and all components of UXP Technology contained or incorporated in the Applications.
(a) Internal Use Only: you may use your licensed component of the UXP Technology for your own business operations and not for distributing or otherwise sharing with third parties.
(b) Purpose of Use: you may use your licensed component of the UXP Technology in a UXP Deployment where you participate for the purposes of building a proof of concept/demonstration/trial/pilot solution for generating Results, developing an Application, testing or commercialising any of the aforementioned and internal training regarding the use of UXP Technology.
(c) Term of License: unless agreed otherwise in your Customer Agreement, your license is subscription-based, i.e. it is granted for regular intervals of time periods agreed in your Customer Agreement. The term of the license shall commence as of the moment of confirmation of receipt of payment for the licensed component of the UXP Technology by the Company or its authorised reseller and shall run until you pay for the subscription in accordance with the Price List.
(d) License Fee: unless agreed otherwise in your Customer Agreement, the fee for your license subscription is provided in the Price List.
(e) Authorised Installations: unless agreed otherwise in your Customer Agreement, you are allowed to have one installation of your licensed component of the UXP Technology per UXP Deployment and make available such copies internally.
(f) Territory: unless agreed otherwise in your Customer Agreement, there are no geographical limitations to your licensed component of the UXP Technology.
(g) Sub-License: unless agreed otherwise in your Customer Agreement, you have no right to sub-license your licensed component of the UXP Technology.
(h) No Support for Results and Applications. The Company is not obliged to provide any support services for any Results or Applications.
(i) No Liability for Results and Applications. The Company is not required to perform any obligations or incur any liability not previously agreed to between the Parties. You take all responsibility and liability for all creation and use of the Results and Applications, including making sure that they do not infringe on any individual’s rights to privacy and personal data protection.
7.1. The performance of the UXP Technology will vary depending on your hardware platform, software interactions, the configuration of the software and other factors. The UXP Technology is neither fault tolerant nor free from errors, conflicts or interruptions.
7.2. The Company does not make any representation, endorsement, guarantee or assurance:
(a) of the suitability of the UXP Technology or any of its components for your business;
(b) of the suitability of the Company’s authorised reseller or any other third party to install, set up, configure or maintain the UXP Technology for you or create or implement Results or Applications for you;
(c) that any Results or Applications created, implemented, supported and/or serviced by, for or on behalf of you or any third party will meet your business needs or operate successfully with the UXP Technology.
7.3. Unless applicable law or a separate written contract with the Company gives you more rights despite these limitations, you may not, nor shall you permit others to:
(a) reverse engineer, reverse assemble, decompile, disassemble the UXP Technology, in whole or in part, or otherwise attempt to derive the source code of the UXP Technology in whole or in part;
(b) subject the UXP Technology and the related Documentation, in whole or in part, to any license obligations associated with open source software, including combining the UXP Technology or the related Documentation with open source software, in a manner that subjects the Company, or any portion of the UXP Technology or the related Documentation to any license obligations of the open source software;
(c) work around any technical limitations in the UXP Technology and the related Documentation;
(d) circumvent the validation functions of the UXP Technology, if any;
(e) publish the UXP Technology or the related Documentation for others to copy and distribute;
(f) use the UXP Technology for commercial software hosting services.
7.4. You further undertake that you shall not, nor shall you permit others to:
(a) copy, transmit, exhibit, make public, import, export, distribute, use individual components and parts of the UXP Technology separately from the whole, include any parts of the UXP Technology in databases and other collections or compilations, enhance, modify or otherwise create any derived forms of the UXP Technology or transfer them to third persons, except as allowed in Section “License”;
(b) sell, offer for sale, lease, lend or rent the any parts of the UXP Technology nor grant any sub-licenses to third parties;
(c) alter or remove any and all legends, trademarks, trade names, copyright notices and other identification and proprietary notices affixed to any copies of any parts of the UXP Technology;
(d) pledge or otherwise encumber any parts of the UXP Technology to any third party;
(e) apply for or register any right, title or interest, including any intellectual property rights, in and to any parts of the UXP Technology or appear or present itself as an owner or developer of any parts of the UXP Technology;
(f) use any of the Company’s trademarks, logos, product names and other types of marks or trade dress of the Company without the Company’s prior approval.
7.5. Private Data. If your UXP Deployment requires Private Data to be kept secret, then you shall, and you shall make sure that others do:
(a) have a process in place that audits the installation, set up, configuration and maintenance of your component of the UXP Deployment in order to assure compliance with applicable laws and regulations to adequately protect the Private Data.
(b) make sure that your component of the UXP Deployment, your Results and your Applications do not disclose or publish Private Data to any unauthorised third parties.
(c) ensure a sufficient level of protection for the private keys and prevent the loss of the private keys used in the UXP Deployment.
(d) keep the systems running your component of the UXP Deployment up-to-date with regard to software and especially security patches.
(e) not modify the UXP Technology or interfere with its execution during the processing of Private Data.
7.6. Other Intellectual Property Rights. Rights to access and use the UXP Technology under a Copyrights license do not give you any right to implement the Company’s patents or other intellectual property rights in the UXP Technology or devices that access the server.
7.7. Transfer of components of the UXP Technology. You may not transfer any parts of the UXP Technology to a third party without the Company’s prior consent. If permitted, there may be additional charges for transferring any parts of the UXP Technology to a third party.
7.8. Test Results. If you would like to disclose to a third party the results of any test of the UXP Technology (security, benchmark, penetration testing etc), you must first obtain the Company’s prior approval.
7.9. Export Laws and Regulations. You must comply fully with all relevant export laws and regulations to assure that neither any parts of the UXP Technology, nor any Results or Applications, are exported, directly or indirectly, in violation of applicable laws.
8.1. Components of the UXP Technology may contain or incorporate third party material which is licensed to you under a separate license as identified in (a) the Documentation (e.g. document titled “LICENSES.txt” or similar) or (b) via a supplemental list.
8.2. If such third party licenses require the Company to inform you of any notices related to the third party materials (e.g. open source software) which are contained or incorporated within the UXP Technology and which the Company is required to distribute together with such UXP Technology, then such notices are provided to you in at least one of the following ways at the Company’s sole discretion: (a) automatically installed with or included in the UXP Technology (b) in the Documentation, or (b) via a supplemental list.
9.1. The ownership of all the Customer Data and all rights attached there to, including intellectual property rights, shall remain unchanged and shall belong to you, your clients, End-Users, or other third parties, including to your employees, as the case may be.
9.2. You or owners of Customer Data may grant the Company with a right to process the Customer Data if the Company has agreed to host any components of the UXP Deployment for you, the terms and conditions of which shall be agreed in a separate agreement.
10.1. Confidential Information. “Confidential Information” means data, information and knowledge disclosed between the Parties which is not generally known to the public and (a) is marked or specifically designated as confidential at the time of disclosure or (b) by its nature would be reasonably understood to be proprietary or confidential. The Parties understand and agree that the contents of the Customer Agreement, the UXP Technology and any of its parts as well as the Documentation are the Confidential Information of the Company.
10.2. Discloser and Recipient. Each Party shall be a “Discloser” with respect to Confidential Information, which that Party discloses to the other and shall be a “Recipient” with respect to Confidential Information, which that Party receives from the other. A Discloser shall not identify as Confidential Information any information that the Discloser does not, in good faith, consider to be proprietary and/or confidential.
10.3. Confidentiality Obligations. It is anticipated that each of the Parties will disclose to the other proprietary and confidential information. The Recipient shall maintain the secrecy and confidentiality of Confidential Information of the Discloser by way of efforts at least equivalent to the efforts that Recipient normally applies to its own property that it maintains secret and confidential, but in any event using no less than a reasonable degree of care.
10.4. Permitted Purpose and Users. The Confidential Information may be used and disclosed only for the purposes of implementation the Customer Agreement and only to the Recipient’s employees, professional advisers and subcontractors with a need to know, provided that each such person has previously been advised of the proprietary and confidential nature of the Confidential Information and has entered into a mutually signed written agreement with the Recipient that provides no less protection of the Confidential Information of the Discloser than the terms of this Section “Confidentiality”.
10.5. Infringements. Recipient shall notify the Discloser immediately upon discovery of any unauthorized use or disclosure of Confidential Information or any other breach of this Section “Confidentiality” by the Recipient or any of its representatives or by third parties and cooperate with the Discloser in every reasonable way to prevent any unauthorized use or disclosure of the Confidential Information.
10.6. No Warranties. Neither the Discloser nor any of its representatives make any representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information of the Discloser, unless specifically agreed otherwise in writing. Neither the Discloser nor any of its representatives shall be liable to the Recipient or any of its representatives relating to or resulting from the Recipient’s use of any of the Discloser’s Confidential Information or any errors therein or omissions therefrom.
10.7. No Ownership/License. The disclosure of Confidential Information shall not be construed to grant to the Recipient any ownership or other proprietary interest in the Confidential Information, unless agreed otherwise in the Customer Agreement. The Recipient agrees that it does not acquire any title, ownership, or other intellectual property right or license by virtue of such disclosure. The Recipient shall not use the Discloser’s Confidential Information to obtain any intellectual property rights in any country.
10.8. Exemptions. A Recipient has no obligation with respect to any Confidential Information disclosed under the Customer Agreement which: (a) was in Recipient’s possession before receipt from Discloser other than through prior disclosure by Discloser; or (b) is or becomes a matter of general public knowledge through no breach of the Customer Agreement; or (c) is rightfully received by Recipient from a third party without an obligation of confidentiality; or (d) is independently developed by Recipient without access or reference to the Confidential Information of Discloser; or (e) is disclosed under operation of law, governmental regulation, or court order, provided Recipient first gives Discloser notice and a reasonable opportunity to secure protection of such Confidential Information.
10.9. Effects of Termination and Survival. Upon termination of the Customer Agreement, the Recipient shall (a) immediately cease using the Confidential Information, (b) promptly return to the Discloser all tangible embodiments of the Confidential Information received from the Discloser, and (c) promptly destroy all other copies. The confidentiality obligations of a Recipient under the Customer Agreement shall continue in effect for a period of five (5) years after such return and destruction of Confidential Information, which shall be evidenced by written records of the Recipient. The confidentiality obligations of a Recipient under the Customer Agreement shall continue in effect indefinitely for any Confidential Information which qualifies as personal data or trade secret of the Discloser or information subject to any government security classification.
10.10. Equitable Relief. In the event that a Recipient breaches the provisions of this Section “Confidentiality”, monetary damages will not provide an adequate remedy to the Discloser. Therefore, in the event of a breach or threat of breach, the Discloser shall be entitled to specific performance and injunctive and other equitable relief to restrain such breach or threat of breach, in addition to any other relief available at law or in equity.
11.1. Company’s Indemnification.
(a) The Company will defend you against any claims made by any unaffiliated third party that the UXP Technology infringes its patent, Copyright, trademark or infringes its trade secret rights, and will pay the amount of any resulting adverse final judgment or settlements to which the Company consents.
(b) You shall notify the Company promptly in writing of the claim and give the Company sole control over its defence or settlement. You agree to provide the Company with reasonable assistance in defending the claim and the Company will reimburse you for reasonable out of pocket expenses that you incur in providing that assistance.
(c) The Company’s obligations to defend you will not apply to the extent that the claim or adverse final judgment is based on:
(i) your use of the UXP Technology after the Company notifies you to discontinue use due to such a claim.
(ii) your combining the UXP Technology with a non-Company product (hardware, software or service), data or business processes, including third party add-ons or programs.
(iii) damages attributable to the value of the use of a non-Company product, data or business process.
(iv) your altering or modifying the UXP Technology, including any modifications by third parties;
(v) your distribution of the UXP Technology to, or their use for the benefit of, any third party;
(vi) your use of the Company’s trademark(s) without express written consent to do so;
(vii) for any trade secret claim, your acquiring a trade secret (a) through improper means, (b) under circumstances giving rise to a duty to maintain its secrecy or limit its use, or (c) from a person (other than the Company or its Affiliates) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret.
(d) You will reimburse the Company for any costs or damages that result from the actions listed in Section 11.1.c.
(e) If the Company receives information concerning an infringement or misappropriation claim related to your licensed component of the UXP Technology, the Company may, at its expense and without obligation to do so, either:
(i) procure for you the right to continue to run your licensed component of the UXP Technology, or
(ii) modify your licensed component of the UXP Technology or replace it with a functional equivalent to make it non-infringing, in which case you will stop running your licensed component of the UXP Technology immediately.
(f) If, as a result of an infringement or misappropriation claim, your use of the UXP Technology is enjoined by a court of competent jurisdiction, the Company will, at its option, either procure the right to continue its use, replace it with a functional equivalent, modify it to make it non-infringing, or refund the amount paid and terminate the Customer Agreement.
(g) If any other type of third party claim is brought against you regarding the Company’s intellectual property, you must notify the Company immediately in writing. The Company may, at its option, choose to treat these claims as being covered by this Section 11.1. This Section 11.1 provides your exclusive remedy for third party Copyright, trade secret and other intellectual property rights’ infringement and misappropriation claims.
11.2. Licensee’s Indemnification. You agree to hold harmless and indemnify the Company and its officers, employees, agents and representatives from and against any claims, demands, or causes of action whatsoever, including without limitation those arising on account of any injury or death of persons or damage to property caused by, or arising out of, or resulting from, the exercise or practice of the licenses granted to you under your Customer Agreement by you, your Affiliates or your End-Users, including your officers, employees, agents or representatives.
12.1. You warrant that:
(a) you have the authority to bind yourself or the entity you represent to the Customer Agreement.
(b) you access and use the UXP Technology in accordance with the Documentation and the Customer Agreement.
12.2. The Company represents and warrants that:
(a) it has the right and authority to grant you with the licenses as agreed in the Customer Agreement.
(b) your licensed component of the UXP Technology will operate in all material respects as described in the applicable Documentation until the end of term of the license you purchased.
12.3. The Company makes no other representations and extends no other warranties or guarantees of any kind, whether express or implied, with regard to the UXP Technology, except as expressly provided otherwise elsewhere in the Customer Agreement. There are no express or implied warranties of merchantability, suitability, fitness for a particular purpose, timeliness, security, correctness, the absence of latent or other defects, whether or not discoverable, or the completeness of the UXP Technology. The Company does not warrant that the UXP Technology will meet your requirements or that the use of the UXP Technology will not infringe any patent, copyright, trademark, or other proprietary rights. The Company hereby disclaims all warranties, representations, guarantees and conditions with regard to the UXP Technology, which are not expressly provided in the Customer Agreement.
13.1. Suspension. If you do not comply with the terms and conditions of Sections 2-12, the Company has the right to suspend the validity of any licenses granted under the Customer Agreement until such non-compliance has been stopped or cured, as the case may be.
13.2. Limitations of liability.
(a) No Liability for Your Use. Except to the extent prohibited by law, you assume all liability for damages which may arise from your access and use of the UXP Technology, Results, and Applications. The Company shall not be liable for:
(i) any problems, loss, damages or other consequences suffered by you or third parties due to access and use of the UXP Technology, Results, AND APPLICATIONS, including consequences caused by third party hardware or software;
(ii) any claim or demand made by you, or made against you by any third party, due to or arising from the access and use of the UXP Technology, Results, AND APPLICATIONS, including consequences caused by third party hardware or software.
(b) Liability Cap. THE COMPANY’S LIABILITY ARISING OUT OF OR RELATED TO A CUSTOMER AGREEMENT WILL NOT EXCEED THE LICENSE FEES PAID TO IT FOR THE UXP TECHNOLOGY BY YOU UNDER THAT CUSTOMER AGREEMENT.
(c) Exclusion of Consequential Damages. IN NO EVENT WILL THE COMPANY BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE CUSTOMER AGREEMENT.
(d) Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS SECTION “LIABILITY” APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF THE COMPANY IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Section “Liability”, the Company’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, the Company’s liability limits and other rights set forth in this Section “Liability” apply likewise to the Company’s Affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
(e) Exceptions to Limitation of Liability. Sections “Liability Cap” and “Exclusion of Consequential Damages” above do not apply to: (a) claims pursuant to any provision of the Customer Agreement calling for liquidated damages; (b) claims pursuant to Section “Licensee’s Indemnification”; or (c) claims for attorneys’ fees and other litigation recoverable by the prevailing Party in any action.
13.3. Force Majeure. Neither of the Parties shall be considered responsible for any contractual non-fulfilment or breach of the Customer Agreement caused by Force Majeure. Force Majeure includes situations, where the Company’s employees, contractors and partners are subject to events similar to Force Majeure. Non-fulfilment or breach of the Customer Agreement due to such factors must be fully evidenced between the Parties. In case of a situation of Force Majeure: (1) the suffering Party notifies the other Party of the situation of Force Majeure immediately, (2) as soon as reasonably feasible, the Parties start negotiations in order to find best solutions to avoid, minimise or overcome the negative effects of the situation of Force Majeure, (3) either Party may postpone the performance of its obligations under the Customer Agreement until the situation of Force Majeure has ceased or, if that is not reasonably feasible, until three (3) months after the cessation of the situation of Force Majeure. If Parties do not reach an agreement as a result of the negotiations or if the situation of Force Majeure does not cease within six (6) months, either Party may terminate the Customer Agreement by sending a written notice to the other Party, in which case the Customer Agreement shall be considered terminated as of the receipt of the written notice by the other Party.
13.4. Equitable Relief. The Parties agree that any breach of the Customer Agreement by you may cause irreparable damage to the Company, and that, in event of such breach, in addition to any and all remedies at law, the Company may have the right to an injunction, specific performance or other equitable relief to prevent the continuous violations of the terms of the Customer Agreement.
14.1. The Customer Agreement will terminate automatically if your license for the UXP Technology terminates or expires.
14.2. The Company has the right to terminate the Customer Agreement:
(a) if you are in breach of Sections “Obligations of the Governing Authority” or “Obligations of the Members”, Section “License”, any of the restrictions in Section “General Restrictions”;
(b) if you are in breach of any other Sections of the Customer Agreement and:
(i) such breach is incurable, or
(ii) such breach has not been cured within 30 (thirty) days as of the Company’s request to do so.
14.3. You have the right to terminate the Customer Agreement, if the Company is in breach of Section “Defence against Third Party Claims” and such breach has not been cured within 30 (thirty) days as of your request to do so.
14.4. Upon expiry or termination of the Customer Agreement, you shall stop using the UXP Technology and shall destroy or return any copies thereof to the Company. You shall grant a confirmation in written form within seven (7) calendar days as of the receipt of the respective request from the Company that you have returned or destroyed the copies.
14.5. Any Sections and Sub-Sections of the Customer Agreement which by their nature regulate the rights and obligations of the Parties after the expiry or termination of the Customer Agreement shall remain in force after the expiry termination of the Customer Agreement. For avoidance of doubt, this includes Sections “Confidentiality”, “General Restrictions” and the provisions regulating dispute resolution, governing law, proprietary rights and liability of the Parties.
15.1. Governing Law. The Customer Agreement is governed by, and is to be construed in accordance with, the substantive law of the Republic of Estonia without regard to the conflicts of law principles thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
15.2. Jurisdiction. Any differences between Parties in the interpretation or application of the Customer Agreement shall be settled amicably by mutual consultation. In case an amicable settlement cannot be reached, then any dispute, controversy or claim arising out of or in connection with the Customer Agreement, or the breach, termination or invalidity thereof, shall be finally settled in Harju County Court, Estonia.
15.3. Independent Contractors. You and the Company are independent entities and the Company is not liable for nor bound by any of your acts. The Company and its authorised resellers are independent entities and the Company is not liable for nor bound by any acts of its authorised resellers.
15.4. No Assignment. None of the Parties may assign or transfer the Customer Agreement as a whole, or any of its rights or obligations under it, without first obtaining the written consent of the other Party. That consent may not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company, or its permitted successive assignees or transferees, may assign or transfer this Customer Agreement or delegate any rights or obligations under the Customer Agreement without consent:
(a) to any entity (1) which is directly or indirectly controlling the Company, (2) which is under the same direct or indirect ownership or control as the Company, or (3) which is directly or indirectly owned or controlled by the Company. “Control” and “own” means possessing a fifty percent (50%) or greater interest in an entity or the right to direct the management of the entity;
(b) in connection with a merger, reorganisation, transfer, sale of assets or product lines, or change of control or ownership of the Company, or its permitted successive assignees or transferees.
15.5. Notices. Any notice to be given under the Customer Agreement must be in writing, unless the Customer Agreement explicitly requires the notice to be signed by own hand, by electronic signature or equivalent. Any reference to a “written form” or “in writing” means at least in a format which can be reproduced in writing (e-mail or other electronically verifiable means, document print-out, etc). Notice shall be deemed served and received by the notified Party,
(a) if hand delivered, at the time the notice is delivered in person to the individual or member or officer of the notified Party for whom it was intended,
(b) if sent by courier, at the date of signature of the notified Party,
(c) if sent by registered letter, at the date three (3) days after the registered sending,
(d) if sent by facsimile, at the date such notice is transmitted by facsimile, provided that such transmission is subsequently confirmed by telephone,
(e) if sent by email, at the date after the email was sent, provided the sender does not receive a notice of error or failure to complete the transmission to the correct email address.
15.6. Interpretation. The headings of the clauses or sections in the Customer Agreement are for the purpose of convenience and reference only and shall not be used in the interpretation of nor modify nor amplify the terms of the Customer Agreement nor any clause or section hereof. Words referring to any one gender include the other genders, singular include plural and vice versa, and persons include natural persons as well as created entities (corporate or unincorporated) and the state and vice versa, unless explicitly provided otherwise.
15.7. Severability. If any provision of the Customer Agreement is held to be invalid, all other provisions will remain in full force and will not in any way be impaired. The Parties agree to replace the invalid provision by a valid provision, which shall best reflect the Parties’ original intention and shall to the maximum extent possible achieve the same economic result.