1. General
1.1. Scope of Application. These General Terms and Conditions for Software as a Service (“GTC”) govern the rights and obligations concerning the provision of Software as a Service and related services (hereinafter collectively “SaaS”) by NeoPredics USA, Inc. or its affiliate NeoPredics AG (hereinafter collectively “NeoPredics”) to a customer of NeoPredics or a customer’s affiliates (“Customer”). These GTC form a constituent part of all offers, orders and agreements between NeoPredics and Customer related to the provision of SaaS.
1.2. Deviating Terms. Unless agreed to in writing by NeoPredics, NeoPredics does not accept any deviating terms and conditions of Customer or any other terms. These GTC apply even if NeoPredics provides the SaaS with knowledge of deviating terms and conditions of Customer.
2. Access and Use
2.1. Grant of Right to Access and Use. NeoPredics grants to Customer, subject to the terms in these GTC, a limited, non-exclusive, non-transferable, and revocable right to access and use the SaaS solely for Customer’s business purposes.
2.2. Authorized Users. Unless otherwise agreed to in writing, the SaaS may only be accessed and used by Customer’s employees, representatives and agents (“Authorized Users”) who have a legitimate interest to access and use the SaaS on behalf of and under the control and responsibility of Customer. Customer is solely responsible for ensuring that only Authorized Users have access to the SaaS.
2.3. Login Access to the SaaS. Customer will be provided one or more logins and passwords for its Authorized Users to access the SaaS. Customer, and each Authorized User, are responsible for maintaining the confidentiality and security of such logins and passwords, and for changing the logins and passwords on a regular basis. Customer and its Authorized Users are prohibited from transferring or sharing passwords with any person. Customer will notify NeoPredics immediately if it becomes aware of any loss or theft or unauthorized use of any of Customer’s logins or passwords.
2.4. System Requirements. Customer is responsible for ensuring their system and equipment used to access the SaaS, including but not limited to hardware, operating systems, computer networks, and internet connectivity, meets applicable system requirements necessary to access the SaaS.
2.5. User Documentation. User documentation is provided by NeoPredics to Customer in adequate form for the SaaS’ intended purpose. The provision of any further documentation shall require an express written agreement.
2.6. Restrictions. Customer shall not modify, copy, reproduce, disassemble, decompile, reverse engineer, translate, extract or otherwise link the SaaS to other programs. Customer shall not access the SaaS in order to or with intentions of building a similar or competitive product or service.
2.7. Availability of the SaaS. NeoPredics shall use commercially reasonable efforts to make the SaaS available to Customer. NeoPredics is not responsible or liable for interruptions to the availability of the SaaS due to factors beyond the control of NeoPredics, including, but not limited to, any act or failure to act by Customer or third parties such as telecommunications providers or Customer’s failure to meet its obligations under Section 2.4.
2.8. Modifications or Updates to the SaaS. NeoPredics reserves the right, in its sole discretion, to modify, update, or enhance the SaaS or user documentation from time to time in order to enhance or improve the functionality or operation of the SaaS or to comply with legislative requirements.
3. Payment Terms
3.1. Fees and Payment. Customer shall pay all fees specified in any agreement with NeoPredics related to Customer’s use of the SaaS. Invoices shall be payable within the agreed-upon payment term without any deductions or set-off in the agreed-upon currency and payment method. Customer shall bear any costs associated with payment.
3.2. Date of Payment. Payment is considered made on the date which NeoPredics receives and has the ability to dispose of the payment.
3.3. Taxes. Customer shall pay all foreign, federal, state, and local taxes, if applicable, related to Customer’s access to or use of the SaaS.
3.4. Withholding and Set-Off. Customer may not withhold payment or offset any fees unless and until such counterclaims are undisputed by NeoPredics or confirmed in a final and binding judgment from a competent court of jurisdiction.
3.5. Suspension of Services. If Customer withholds or offsets any payment of fees in violation of Section 3.4, NeoPredics has the right, upon 30 days prior written notice to Customer, to suspend the provision of the SaaS to Customer on a temporary basis until Customer has made full payment of the withheld amount. NeoPredics also reserves the right to demand a down payment or security equivalent to the invoice amount and to suspend the performance of its obligations, in the event circumstances justify reasonable doubts to Customer’s willingness or ability to fulfill its payment obligations. NeoPredics’s rights under this section 3.5 do not limit or affect any other rights or remedies available to NeoPredics under these GTC or any applicable law.
4. Proprietary Rights
4.1. NeoPredics’s Intellectual Property. NeoPredics shall retain, without limitation, any and all rights, title, and interest in and to the SaaS and user documentation, including all related intellectual property rights, and any suggestions, enhancement requests, feedback, recommendations or other information provided by Customer or any Authorized User relating to the SaaS.
4.2. Ownership of Customer Data. Customer owns all right, title and interest in all electronic data or information inputted into the SaaS by or on behalf of Customer or generated by the SaaS as a result of Customer’s use of the SaaS (“Customer Data”). Customer grants NeoPredics the right to use such Customer Data for the performance of its obligations under these GTC, for statistical purposes, as well as for improving and further developing the SaaS.
5. Customer Responsibilities
5.1. Customer Cooperation. Customer shall render to NeoPredics any cooperation that is reasonable and appropriate for the proper performance of the SaaS. Customer acknowledges that provision and performance of the SaaS may depend on Customer’s timely and proper performance of its cooperation obligations. Customer shall use reasonable measures to ensure that any Authorized Users are adequately qualified to use the SaaS and that the user documentation provided by NeoPredics is made available to all Authorized Users to allow them to properly use the SaaS.
5.2. Customer Data. Customer shall be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data.
5.3. Compliance with Laws. Customer agrees to comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the SaaS, including, without limitation, those related to data privacy, international communications, the exportation of technical or personal data, and safety provisions.
5.4. NeoPredics’s Right to Termination and Indemnity. If NeoPredics reasonably suspects Customer is in breach of any obligations under this Section 5, NeoPredics is entitled to terminate its performance obligations under these GTC. In the event of such termination,
i. NeoPredics is released from any performance obligations under these GTC; and
ii. Customer shall indemnify and hold NeoPredics and its employees harmless against any and all damages related to Customer’s breach of its obligation under this Section 5.
6. Confidentiality
6.1. Definition of Confidential Information. As used in these GTC, “Confidential Information” means any and all information disclosed by either NeoPredics or Customer to the other party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of the disclosure. Confidential Information of NeoPredics includes the SaaS and any user documentation, user manual or instructions, drawings, technical documents and other data in material or immaterial form, including in electronic form, related to the SaaS. Confidential Information does not include any information that is, or becomes, publicly available by means other than through unauthorized disclosure by the other party.
6.2. Use and Protection of Confidential Information. Customer and NeoPredics shall only use Confidential Information in furtherance of the activities and obligations contemplated under these GTC. The receiving party will protect the disclosing party’s Confidential Information by using at least the same degree of care as the receiving party uses to protect its own Confidential Information of a like nature (but no less than a reasonable degree of care) to prevent the unauthorized use, dissemination, disclosure, or publication of such Confidential Information.
6.3. Required Disclosures. A receiving party may disclose Confidential Information of the disclosing party as required to comply with binding orders of a court or other governmental body having jurisdiction over it or the disclosing party, or as otherwise required by law, provided that the receiving party (i) gives the disclosing party reasonable written notice to allow it to seek a protective order or other appropriate remedy (except to the extent compliance with the foregoing would cause the receiving party to violate a court order or other legal requirement), (ii) discloses only such information as is required by the governmental entity or otherwise required by law, and (iii) uses its best efforts to obtain confidential treatment for any Confidential Information so disclosed.
7. Warranties
7.1. Limited Warranty. NeoPredics warrants to Customer that the SaaS will function without material defects. Customer’s sole and exclusive remedy for NeoPredics’s breach of this warranty shall be that NeoPredics shall use commercially reasonable efforts to correct any errors or modify the SaaS to remedy any material defects in functionality within a reasonable period of time. However, NeoPredics shall have no obligation with respect to this warranty unless notified of any material defects in functionality by Customer within thirty (30) days of Customer first noticing such defect. Further, NeoPredics shall have no obligation with respect to this warranty where any alleged nonconformity is due to user error by Customer, including Customer’s or any Authorized User’s failure to follow the user documentation. NeoPredics does not warrant that the SaaS will be free of non-material errors, bugs, or minor interruption, or that all such errors will be corrected.
7.2. Non-infringement Warranty. NeoPredics warrants that it has full power and authority to grant access and use of the SaaS and other rights granted to Customer by these GTC with respect to the SaaS and that the performance by Customer in its utilization of the SaaS will not in any way constitute an infringement or other violation of intellectual property rights of a third party.
8. Disclaimer
8.1. Disclaimer. Except as otherwise stated in Section 7 above, NeoPredics does not represent that Customer’s use of the SaaS will be secure, timely, uninterrupted or error free, or that the SaaS will meet Customer requirements or that all errors in the SaaS will be corrected or that the system that makes the SaaS available will be free of viruses or other harmful components or that the SaaS will operate in combination with other hardware, software, systems or data not provided by NeoPredics or that NeoPredics, despite its best efforts, or its third party vendors will be able to prevent third parties from accessing Customer Data or Customer’s Confidential Information, or that any stored Customer Data will be accurate or reliable. Customer acknowledged that NeoPredics does not control the transfer of data over telecommunications facilities, including the internet. NeoPredics does not warrant that it will be able to prevent third party disruptions of the SaaS. Customer acknowledges further that the SaaS may be subject to limitations, delays, and other issues inherent in the use of the internet and electronic communications outside of NeoPredics’s control. NeoPredics is not responsible for any delays or other damage resulting from such issues.
8.2. Disclaimer of Warranties. THE WARRANTIES STATED IN SECTION 7 ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY NEOPREDIX. THERE ARE NO OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PUPOSE. EXCEPT AS STATED IN SECTION 7 ABOVE, THE SAAS IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER THE SAAS OR THE INFORMATION GENERATED THEREBY IS ACCURATE OR SUFFICIENT FOR CUSTOMER’S PURPOSE.
9. Indemnification
9.1. Infringement Indemnity. NeoPredics shall indemnify, defend, and hold Customer, its affiliates, successors, and assigns, including the applicable officers, directors, employees, and agents thereof, harmless, from and against any and all damages, liabilities, losses and expenses, including reasonable attorneys’ fees and expenses, resulting from any third-party claim that arises from or is related to the violation, misappropriation, or infringement of any intellectual property rights of a third party caused by Customer’s use of the SaaS in accordance with these GTC.
9.2. Customer’s Indemnity. Customer shall indemnify, defend, and hold NeoPredics, its affiliates, successors, and assigns, including the applicable officers, directors, employees, and agents thereof, harmless, from and against any and all damages, liabilities, losses and expenses, including reasonable attorneys’ fees and expenses, resulting from any third-party claim that arises from or is related to a) any Customer Data, including the accuracy, quality, integrity and legality of Customer Data and the means by which it was acquired; b) Customer’s use of the Customer Data; c) Customer’s use of the SaaS; or d) Customer’s breach of Sections 5 and 6 of these GTC.
10. Limitation of Liability
10.1. Maximum Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF NEOPREDIX ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF SAAS TO CUSTOMER, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO NEOPREDIX IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
10.2. No Consequential Damages. IN NO EVENT SHALL NEOPREDIX BE LIABLE TO CUSTOMER FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES RELATED TO ANY LOSS OF PROFITS OR REVENUES, LOSS OF GOODWILL, AND LOSS OR CORRUPTION OF DATA OR CONTENT, ARISING OUT OF CUSTOMER’S USE OF THE SAAS (INCLUDING, WITHOUT LIMITATION, THE USE OF THE SAAS OR THE INABILITY TO USE THE SAAS).
10.3. Exclusions. The limitations on liability and damages set forth in Sections 10.1 and 10.2 herein shall not apply to damages or liability arising from NeoPredics’s gross negligence or intentional misconduct.
11. Miscellaneous Provisions
11.1. Jurisdiction and Venue. All disputes arising out of or related to these GTC shall be subject to the exclusive jurisdiction of the state and federal courts in the state of Florida, and Customer agrees to submit to the personal and exclusive jurisdiction and venue of these courts. Notwithstanding the previous sentence, NeoPredics may, at its discretion, also bring action against Customer in a competent court located in Customer's principal place of business or registered office.
11.2. Applicable Law. The laws of the State of Florida (without giving effect to its conflict of laws rules) govern all matters arising out of or relating to these GTC or any agreement between NeoPredics and Customer related to the provision of SaaS under these GTC, including, without limitation, the interpretation, construction, performance, and enforcement thereof. The United National Convention on International Sale of Goods (CISG) shall not apply.
11.3. Force Majeure. Neither NeoPredics nor Customer will be liable to the other for delay or failure to perform its obligations under these GTC if such delay or failure is caused by an event or series of related events that is outside the reasonable control of either party and without the fault or negligence of either party and which by the exercise of reasonable diligence either party was unable to prevent including, but not limited to, failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars.
11.4. Assignment. Customer may not assign any of its rights or obligations out of or in connection with these GTC without the prior written consent of NeoPredics.
11.5. Notices. All notices, permissions, and approvals required under these GTC shall be in writing. Notices sent to NeoPredics shall be sent to . Notice will be deemed to have been duly given when the notice is received by NeoPredics.
11.6. Waiver. No failure or delay by either NeoPredics or Customer in exercising any right under these GTC shall constitute a waiver of that right.
11.7. Cumulative Remedies. Other than as expressly stated herein, the remedies provided in these GTC are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.8. Severability. If any provision of these GTC is held by a court of competent jurisdiction to be contrary to law, invalid or unenforceable, then, notwithstanding such illegality, invalidity, or unenforceability, the remaining provisions of these GTC shall continue in full force and effect and the application of that invalid or unenforceable provision shall be enforced to the full extent permitted by law.
11.9. Survivability. Sections 4, 5, 6, 7, 8, and 9 shall survive and continue to bind NeoPredics and Customer after termination of any agreement for the provision of SaaS under these GTC to the extent and for as long as may be necessary to give effect to the rights, duties and obligations outlined in these GTC.
Valid as of February 2022
