Deep Void’s Terms and Conditions
All quotations provided by Deep Void (“Company”), and any purchase order provided by any potential customer or end user (“Customer”) to Company, are subject to these terms and conditions (this “Agreement”). This Agreement constitutes a binding legal agreement and, by agreeing to any quotation or submitting any purchase order, Customer agrees to all terms and conditions of this Agreement in respect of all products and services of Company (together, “Products”).
1. Agreement. Customer may use the Products on a non-exclusive basis solely for its own purposes. Customer shall not be entitled to any other software (including any other executable or source code) from Company. Customer represents that it has all necessary authority to enter into this Agreement and that the execution of this Agreement and the receipt of the Products will not conflict with any legal, regulatory or contractual obligations of Customer. Company covenants that it shall use all Products in strict compliance with all applicable law.
2. Intellectual Property. Company has all right, title and interest in the intellectual property that the Products embody, including all enhancements, improvements and modifications thereof (“Company Property”). If Customer provides Company with any feedback regarding the Company Property, Company may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback. Except as set forth expressly herein, Customer shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of, the Products; (b) modify the Products, (c) sublicense, sell, distribute or provide the Products to any third party, or (d) bypass any security measure or access control measure of the Products.
3. Payment. In consideration of the Products, Customer shall make payment to Company as agreed in any separate quotation or purchase order. Except to the extent set forth otherwise in any quotation or order, amounts due hereunder do not include VAT and other taxes, and Customer shall make payment in respect of such taxes in addition to other amounts due hereunder. Customer shall make payment to Company without deduction or withholding of any taxes or other government charges.
4. Warranties; Disclaimer. Company represents and warrants that the Products shall comply agreed specifications in all material respects and that, to its best knowledge, the Products does not infringe the intellectual property rights of any third party. Subject to the foregoing, the Products is provided “as is”. To the maximum extent permitted by applicable law, Company disclaims all implied and statutory warranties, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement. While Company has made reasonable efforts to ensure the accuracy of the deliverables provided, given that Company relies on third party sources and algorithms in producing such deliverables, Company cannot guarantee the complete accuracy of such deliverables. As such, Company does not make any representation or warranty concerning the accuracy of the deliverables.
5. Indemnification. Customer shall defend and indemnify Company (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and attorneys’ fees) which Company may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party or government or regulatory body arising from the use by Customer of the Products not in compliance with applicable law or as a result of Customer making any representation or warranty not made by Company hereunder, or Customer accepting any liability not accepted by Company hereunder.
6. Limitation of Liability. In no event shall Company (or its directors, officers, affiliates, agents or employees) have any liability for any consequential, indirect, special or punitive damages, arising out of or relating to the Company Software or Products. The entire liability of Company (or its directors, officers, affiliates, agents or employees) hereunder shall not exceed the total amount Customer has actually paid to Company in respect of the Products in the 12 months prior to the applicable claim. Company shall have no liability in respect of any inaccuracies in any deliverables.
7. Term. The term of this Agreement shall commence on the date that any quotation or order is accepted by all parties (the “Effective Date”) and, commencing as of the Effective Date, shall continue in effect for a period as set forth in the applicable quotation or order (the “Initial Term”). Following the Initial Term, solely to the extent set forth expressly on the applicable quotation or order, this Agreement shall automatically renew for subsequent periods as set forth on the applicable quotation or order (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement upon written notice if the other party shall materially breach this Agreement and not cure such breach within 30 days of receipt of written notice thereof from the non-breaching Party. Upon any termination of this Agreement, Customer shall cease all use of the Products. Sections 2 – 9 of this Agreement shall survive any termination or expiration thereof. Neither party shall have liability for the termination of this Agreement in accordance with its terms.
8. Miscellaneous. This Agreement together with any applicable quotation or purchase order constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes any and all other agreements between the parties regarding the subject matter hereof. Except as expressly set forth herein, this Agreement may not be modified or amended except in a writing executed by both parties. If any part of this Agreement shall be invalid or unenforceable, such part shall be interpreted to give the maximum force possible to such terms as possible under applicable law, and such invalidity or unenforceability shall not affect the validity or enforceability of any other part or provision of this Agreement. Company may assign its rights or obligations under this Agreement to an affiliated company or to any successor entity, including by way of merger or purchase of all or substantially all of Company’s assets or share capital. Customer shall not assign any of its rights or obligations hereunder without Company’s prior written consent. Assignments in violation of the foregoing shall be void.
9. Governing Law and Dispute Resolution. This Agreement shall be construed in accordance with the laws of the State of New York, excluding any conflict of law’s provisions that would result in the application of the law of another jurisdiction. The United Nations Convention on contracts for the international sale of goods (CISG) does not apply. Any and all disputes, controversies, differences, or claims arising out of or relating to the Agreement shall be resolved through binding arbitration. The arbitration proceedings shall be conducted in accordance with the Commercial Rules of the American Arbitration Association including application of the Optional Rules for Emergency Measures of Protection and shall be governed by the United States Arbitration Act and this Section 9. The seat of arbitration shall be the State of New York and the language of the arbitration shall be English. Notwithstanding the foregoing, either party may seek an interim injunction or other interim equitable relief in any court of competent jurisdiction. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties and the decisions made by the arbitral tribunal, including its awards, except as required by the applicable law and to the extent not already in the public domain.
