General terms and conditions

1. DEFINITIONS

1.1. In these General Terms and Conditions, the following words and expressions shall have the following meanings:

Affiliate: an entity either directly or indirectly Controlled by, Controlling or under common Control with the entity named as Client;

Agreement: the licence agreement between AMA and the Client; AMA: AMA Partners B.V., a limited liability company (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its statutory seat in Amsterdam and its office address at Gustav Mahlerlaan 42 (Building SOM 1), 1082 MC Amsterdam, The Netherlands, or that particular Affiliate of AMA that has entered into the Agreement with the Client, as indicated in the Agreement;

Authorised Site: the Licensee location(s) and/or territory stated in the Agreement at which Authorised Terminal(s) and/or Authorised User(s) are located and authorised by the Licensor to access the Product;

Authorised Terminal: a computer workstation that at any given time can be used by a single Authorised User to access the Product;

Authorised Unit(s): collectively refers to any and all of the Affiliates, Authorised Sites, Authorised Terminals, Authorised Users and Licensee or as otherwise defined in the Agreement;

Authorised User: an employee of Licensee authorised by the Licensor to access the Product;

Client: the entity or entities identified on the Agreement;

Control: (a) owning or controlling (directly or indirectly) more than 50% of the voting share capital of the relevant undertaking; or (b) being able to direct the casting of more than 50% of the votes exercisable at general meetings of the relevant undertaking on all, or substantially all, matters; or (c) the right to appoint or remove directors of the relevant undertaking holding a majority of the voting rights at meetings of the board on all, or substantially all, matters;

Distributor: a third-party distributor over whose network or through whose services Licensee may access the Product;

General Terms and Conditions: these general terms and conditions;

Licence: the non-exclusive, non-transferable, limited licence to access and use the Product;

Licensee: the entity or entities (either Client and/or any Affiliate(s)) identified on the Agreement;

Licence Fee: an annual fee payable for the Licence;

Licensor: AMA; Product: information, data, software, products, documentation, graphics, code, database, services and other items that are part thereof as indicated in the Agreement;

Third-party Provider: a supplier of data, information, software, services or other items that are part of or otherwise used in connection with the Product;

Unless the context otherwise requires: (a) headings do not affect the interpretation of these General Terms and Conditions; (b) the singular shall include the plural and vice versa and references to one gender include all genders; (c) where any party undertakes or assumes any obligation, that obligation is to be construed as requiring the party concerned to exercise all rights and powers of control over the affairs of any other person which it is able to exercise (whether directly or indirectly) in order to secure performance of the obligation; (d) references to any English legal term or concept shall, in respect of any jurisdiction other than England, be construed as references to the term or concept which most nearly corresponds to it in that jurisdiction; and (e) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.

2. APPLICABILITY OF THE GENERAL TERMS AND CONDITIONS

2.1. The General Terms and Conditions shall apply to all offers, orders, purchases and/or sales of the Product and (other) (supplemental or follow-up) agreements between AMA and its Client.

2.2. The General Terms and Conditions shall if reasonably possible be submitted by AMA to the Client before or on entering into the Agreement.

2.3. AMA reserves the right to update or modify the General Terms and Conditions at any time without prior notice. The most current version of the General Terms and Conditions can at any time be viewed by visiting the website: https://cglytics.com/general-terms-and-conditions. Access to and use of the Product following any such change constitutes Client’s agreement to be bound by the General Terms and Conditions as updated or modified.

2.4. AMA shall not accept provisions in derogation of the General Terms and Conditions unless AMA has confirmed these in writing.

3. OFFER ORDER AND AGREEMENT

3.1. Offers made by AMA shall always be deemed non-binding. All prices included in the offers are valid only for the period of time as indicated in the relevant offer by AMA.

3.2. A Client order shall become binding for AMA upon written acceptance of the Client order by AMA upon which the Agreement shall have been entered into between Client and AMA.

3.3. AMA reserves the right to refuse a Client order for no reason/without cause. AMA will inform the Client within a reasonable period of time if a Client order is not accepted by AMA.

4. LICENSE

4.1. Subject to the terms of the Agreement and the General Terms and Conditions, the Licensor shall grant and the Licensee shall accept a non-exclusive, non-transferable, limited licence (License) to access and use the Product.

4.2. The Licence entitles the Authorised User to access and use through an Authorised Unit – exclusively for the Authorised User’s own internal business – the Product.

5. LICENSEE’S UNDERTAKINGS

5.1. The Licensee shall not (and shall procure that no Authorised User shall) perform any of the following acts, unless with the express permission in writing of the Licensor: (i) license, sublicense, transfer, sell, resell, publish, reproduce, and/or otherwise redistribute the Product or any components thereof in any manner (including, but not limited to, via or as part of any internet site); (ii) provide access to the Product or any portion thereof to any person, firm or entity other than an Authorised User, including, without limitation, any Affiliate not expressly identified in the Agreement; (iii) use the Product as part of Licensee’s intranet or other internal network; (iv) create archival or derivative works based on the Product or any portion thereof; (v) modify, reverse-engineer, disassemble, decompile or store the Product or any software contained therein; (vi) use the Product, in whole or in part in any manner that competes with Licensor or its Affiliates, including without limitation, any distribution of the Product or derivative works based thereon; (vii) create a database in any form whatsoever from the Product or its website content; or (viii) associate the Product or its website (content) to another website by employing any technology including but not limited to hyper linking and framing.

5.2. Licensee shall take all precautions that are reasonably necessary to prevent any unauthorised distribution or redistribution of the Product and Licensee shall ensure compliance with the terms and conditions of the General Terms and Conditions and the Agreement.

5.3. Licensee shall provide Licensor with the name, email address, and job title of each Authorised User of the Product and shall notify Licensor whenever a person ceases to be an Authorised User. Licensor reserves the right to withhold or withdraw a password to any Authorised User of the Product.

5.4. Licensee shall hold, and shall ensure that all of its Authorised Users hold, any passwords/user IDs issued by Licensor or by Licensee in connection with access to the Product in strict confidence, and Licensee shall instruct all Authorised Users of their obligations in this regard. Licensee shall promptly advise Licensor of any actual or threatened unauthorised disclosure or misuse of the Product or any passwords/user IDs with respect to the Product that come to its CGLytics attention and shall cooperate with Licensor in enforcing the restrictions and limitations set forth herein.

5.5. Unless expressly permitted in writing by Licensor (i) sharing of passwords/user IDs and simultaneous access via the same password/user ID is prohibited; and (ii) sharing or distributing of any data or information from the Product with or to individuals who are not Authorised Users of the same Product is prohibited.

6. DELIVERY ACCESS

6.1. Delivery of the Licence is accomplished when Licensor has delivered possession of the Product when the internet access password has been sent to the Licensee.

6.2. Delivery of the Licence will take place within a reasonable period of time after the Agreement has been entered into between Client and AMA. If delivery of the Licence does not take place within 10 days of entering into the Agreement, the Licensee is entitled to terminate the Agreement. In that case the Licensee is not entitled to any compensation, other than, if applicable, a total refund of the already paid costs of the Product.

6.3. All risks relating to the Product shall transfer to the Licensee at the moment of delivery.

6.4. Access to and use of the Product shall be limited to those Authorised Units identified in the Agreement. The maximum number of Authorised Units through which Licensee accesses the Product shall not exceed in the aggregate the number of Authorised Units specified in the Agreement.

6.5. Licensor shall not be responsible or have any liability for: (i) the procurement, installation or maintenance of any equipment on which the Product are accessed by Licensee; (ii) any communications connection by which the Product is transmitted; (iii) any communication delays or interruptions of the Product; (iv) the transmission to Licensee of the Product beyond the point of Licensor’s or its service facilitator’s computer facility; or (v) any fees payable by Licensee for any communications lines to any Distributor.

7. ENHANCEMENTS AND OTHER SERVICES

7.1. Licensor may, in its sole discretion, make available enhancements, upgrades and other improvements to the Product for additional fees. Licensee may choose to receive same, and upon payment of the applicable fees, such enhancements, upgrades and other improvements shall be deemed to be licensed to Licensee under the Agreement, unless another agreement has been entered into between Licensor and Licensee with respect to such enhancements, upgrades and other improvements.

7.2. Licensor reserves the right to alter or modify the Product and any portions or configurations thereof from time to time. Such alterations and/or modifications may include, without limitation, addition or withdrawal of features and/or data or changes in instructions and/or documentation.

8. LICENSE FEE

8.1. For the License an annual fee (Licence Fee) for the amount as specified in the Agreement shall be payable. The Licence Fee shall be in euros and shall be increased with any applicable (valueadded) taxes, duties or other additional sums. The Licence Fee shall be due and payable to the Licensor within thirty (30) days after the date of the Licensor’s invoice, regardless of whether Licensee exercises the Licence. Payments shall be made by bank transfer into the bank account to the party as indicated in the Agreement.

8.2. The Licensor may increase the Licence Fee for any Product at any time (i) if an enhancement, upgrade or other improvement to the Product has been made available by Licensor and Licensee has chosen to receive the same and/or (ii) after the initial one year term by providing advance written notice (which may be in the form of an invoice) to Licensee. Licensee shall have the right to terminate the Agreement by giving notice of termination to the Licensor in accordance with the provisions of clause [11.2]. In the event of termination of the Agreement pursuant to this clause [8.2], Licensee shall be liable for payment of the Licence Fee.

8.3. The Licensor may assess a late charge per month (at a rate of 8.25 percent (8.25%) per annum) on all amounts due and not paid within thirty (30) days of the date of the Licensor’s invoice until the time of payment. Licensee’s failure to pay amounts when due constitutes a material breach. In addition to all other rights and remedies available to the Licensor, the Licensor may suspend delivery of the Product or any component thereof for as long as any amount remains unpaid after such thirty (30) day period.

9. PROPRIETARY RIGHTS

9.1. The Client, Licensee and Authorized User acknowledge and agree that the Product may contain information, data, software, products and documentation obtained from Third-party Providers.

9.2. All proprietary rights (including, but not limited to, copyrights, trade secrets, database rights, trademark rights, trade name rights and other intellectual property rights) subsisting in or used in connection with the Product, including, but not limited to, all information, data, software, products and documentation contained or included therein, are and shall remain the sole and exclusive property of the Licensor, its Affiliates and their Third-party Providers.

9.3. Copying of, use of, access to or distribution of the Product or any information, data or software contained therein in breach of the General Terms and Conditions and the Agreement is not permitted.

9.4. Licensee shall protect the copyrights, trade secrets, database rights, trademarks, and other proprietary rights of the Licensor its Affiliates, and Third-party Providers in the Product, including, but not limited to, any contractual rights, during and after the term of the Agreement. Licensee shall comply with all reasonable requests made by the Licensor to protect the rights of the Licensor, its Affiliates, and Third-party Providers in the Product.

9.5. Licensee agrees that any Third-party Provider of any portion of the Product may enforce its rights against Licensee as an intended third-party beneficiary of the Agreement, even though such Third-party Provider is not a party to the Agreement. Licensee shall, where applicable, and as required to receive certain portions of the Product, enter into separate agreements with the Licensor, its Affiliates and/or Third-party Providers, and Licensee shall comply with any conditions, restrictions, or limitations imposed therein. Failure of Licensee to comply with the provisions of this clause [9.4] shall constitute a material breach of the Agreement.

9.6. In the event the Licensor has reasonable grounds to believe Licensee is violating the terms and/or conditions of the General Terms and Conditions and/or the Agreement, the Licensor shall have the right to suspend delivery of, or Licensee’s access to, the Product. To the fullest extent permitted by law, Client and Licensee shall be jointly and severally liable to and indemnify, hold harmless and defend the Licensor, its Affiliates and Third-party Providers from and against any and all costs, claims, damages or liabilities (including reasonable attorneys’ fees) arising out of use of the Product by Licensee.

10. LIABILITY

10.1. The Product and any components thereof have been carefully compiled by the Licensor and have been obtained from, and based upon, a variety of publicly available sources (such as financial reporting services and company reports) and Third-party Providers believed reliable.

10.2. The Product and all components thereof are provided on an “as is” and “as available” basis and Licensee’s use of the Product is at Licensee’s own risk. The Licensor is not liable for the information, data, software, products and documentation included in the Product or any decision or consequence based on the use of it. The information, data, software, products and documentation included in the Product are not intended to be an advice on any particular matter.

10.3. No representation is made or warranty is given (either express or implied) as to the completeness, accuracy, reliability, the continuous supply, merchantability, fitness for any purpose or use, freedom from bugs, software errors or defects, uninterrupted functioning, or operating with any software or hardware configuration as to the Product, including the information, data, software, products or documentation contained therein, any component thereof or any communications (oral or written) with respect thereto, or the results obtained by their use or as to the performance thereof.

10.4. If access to (a part of) the Product is not possible as a result of a system breakdown or malfunctioning of the Licensor’s online hardware and/or software infrastructure, the Licensor will make all reasonable efforts to solve this problem. The Licensor will inform the Licensee if the access problem cannot be solved within [24] hours (Saturdays and Sundays not included) after discovery of the non-accessibility by the Licensor. If access cannot be restored during the following [24] hours (Saturdays and Sundays not included), the Licensee is entitled to terminate the Agreement with the Licensor. The Licensor will refund the Licence Fee pro rata for the remaining months.

10.5. Notwithstanding any to the contrary in this Agreement, in no event whatsoever shall the Licensor be liable for any indirect or consequential damages (including but not limited to loss of profits, trading losses, or lost time or goodwill).

10.6. No right of action and other entitlements arising from or pertaining to the Product may be brought by Licensee more than one (1) year after the date on which Licensee has become aware or could have become aware of such right and entitlement.

11. DURATION AND TERMINATION

11.1. Unless otherwise agreed, the duration of the Agreement is a fixed term of one year. The Agreement shall upon expiry of the initial one year term automatically be renewed for successive periods of one year, unless a notice of termination of the Agreement in accordance with the terms of the General Terms and Conditions has been given.

11.2. Licensor and Licensee may terminate the Agreement by giving notice of termination against the expiry date of the (automatically renewed) Agreement, observing a notice period of one month.

11.3. Licensee may terminate the Agreement in accordance with the provisions of clause [8.2] by giving notice to the Licensor, observing a notice period of thirty (30) days from receipt of a notice of the Licensor to increase the Licence Fee.

11.4. Licensor and Licensee may by notice of termination terminate the Agreement in whole or in part with immediate effect and without judicial intervention, if: (i) the other party commits a breach of this Agreement which is not remedied within [twenty (20)] days of notice from the other party specifying the breach and requiring the breach to be remedied; or (ii) the other party by voluntary or involuntary action goes into liquidation or receivership or dissolves or files a petition for bankruptcy or reorganization or for suspension of payments or is adjudicated bankrupt, becomes insolvent or assigns or makes any offer to its creditors, or if part or all of its assets are attached.

11.5. The right to terminate the Agreement shall not prejudice any other right or remedy in respect of the default or the breach concerned (if any) or any other breach.

12. GENERAL

12.1. Force Majeure. The Licensor shall have no responsibility or liability for any delays or interruptions in or failures of its performance under the Agreement beyond its reasonable control, including, but not limited to, acts of God, acts of governmental authority, fire, acts of war, terrorism, flood, strikes, severe or adverse weather conditions, power failures or communications line or network failures.

12.2. Invalidity. Each of the provisions of the General Terms and Conditions and the Agreement is severable. If any such provision is held to be or becomes invalid or unenforceable under the law of any jurisdiction, the parties shall use all reasonable efforts to replace it with a valid and enforceable substitute provision the effect of which is as close to its intended effect as possible.

12.3. Governing Law and Jurisdiction. The Agreement and all offers, orders, purchases and/or sales of the Product and (other) (supplemental or follow-up) agreements to which the General Terms and Conditions apply in whole or in part shall be governed by and construed in accordance with the laws of the Netherlands (and excluding, for the avoidance of doubt, the laws of any non-European part of the Netherlands).

12.4. All disputes between the parties to the Agreement arising under or in connection with the Agreement, offers, orders, purchases and/or sales of the Product and (other) (supplemental or follow-up) agreements, or further agreements resulting from the Agreement to which the General Terms and Conditions apply in whole or in part, including all disputed claims for breach by any party of any representation, warranty, undertaking or covenant under the Agreement, shall be finally resolved by the competent court in Amsterdam, the Netherlands.

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