SPECIAL TERMS TO GENERAL TERMS OF CONTRACT FOR THE PROVISION OF SUPPLIES AND SERVICES (VOL/B) RELATING TO DIMENSIONS AND OTHER SERVICES

Together with the General Terms of Contract for the Provision of Supplies and Services (VOL/B), version 2003 of 5 August 2003, published in Federal Gazette No. 178a of 23 September 2003 (the “General Terms”), these terms of use (these “Special Terms”) govern and apply to the services described in the invoice attached or referring hereto, so please carefully read them before using the Services and print a copy for future reference. By paying the fees set out in the invoice or using the services, you agree to be bound by these Special Terms, which together with the General Terms, apply to the exclusion of any other terms and/or conditions, including under any purchase order or similar document.

1. Services

In consideration for the agreed fees (the “Fees”) we hereby: (a) agree to provide the services set out in the proposal to which these Special Terms in accordance with the agreed requirements; and (b) grant to you, during the Term, a non-exclusive, non-transferable, personal right and license to permit the number of employees (“End Users”) set out in the proposal to which these Special Terms apply to access and use the platforms, applications, data and other services as may be specified therein (if any). We reserve the right to limit such access and use as we may determine is reasonable.

You shall only copy, analyse, process or otherwise use the Services for your internal purposes. Without limiting the foregoing, you shall not: (a) give or allow access to, or distribute or make available, all or any part of the Services, including the Data to any third party (including any of your Affiliates or associated bodies); and (b) use any part of the Services or Data for any commercial purposes whatsoever or for the benefit of any other person, nor to develop, or otherwise in connection with, a product or service which competes with the products and services we offer, including to verify or enhance data previously or independently acquired or developed for use in respect of such product or service. Any external use of any Data (other than to extent expressly provided herein) shall require our prior written consent and to be appropriately acknowledged.

You expressly acknowledge that due to the nature of the Data, certain parts will have been obtained from third parties over which we have no control, including from sources that impose their own licensing terms (“Additional Data Terms”) – as a result, the Data may be added to, updated and/or parts excluded from time to time. If we exclude data in response to a request from a third party, you shall cease using (and delete all copies in your possession or control) that data upon a written request from us. You shall comply with the Additional Data Terms we give you notice of, including via the acknowledgements page on the Services and, to the extent there is any conflict between the rights granted in the Agreement and the Additional Data Terms, the latter shall prevail. You also acknowledge that the Services and the Data will continue to be developed and improved during the Term, which may include the addition of new content, modules and features that require you to accept additional terms as a condition of their use.

It is hereby expressly acknowledged that, notwithstanding any other part of the Agreement, the scope of rights specified in these Special Terms shall govern the ownership and use of the Services, including Data and (if any) Deliverables.

2. Acceptable use

You shall only use and permit the use of the Services in the manner, to the extent, and for the period and purposes, expressly set out in these Special Terms. All such use shall be for your own internal purposes.

You shall not, and shall ensure that none of the End Users (if applicable) shall, do or assist, encourage or permit any person to do any of the following: (a) copy, modify, adapt or create derivative works of any part of the Services; (b) make available, distribute, sell, rent, lease, license, frame, commercialize or use for the benefit of any other person (including as part of a service bureau arrangement) any part of the Services, or use any part of the Services to develop, or otherwise in connection with, a product or service which competes with any of the products or services we offer; (c) attempt to bypass any measure we may use to prevent or restrict access to the Services, nor access or use the same in a way or using means not made available by us for that purpose; or (d) decipher, decompile, disassemble, reverse engineer or attempt to derive any source code or underlying ideas or algorithms of, any part of the Services save to the extent permitted by statutory regulations. For the avoidance of doubt, the foregoing restrictions shall apply (where the context permits) to any Data, save to the extent expressly set out in the Agreement and you shall not use any automated means, including robots, scripts, or spiders to access, monitor, crawl, scrape or mine the Data except those expressly authorized by us in advance in writing.

If we have reason to believe you are not complying with the above restrictions or the terms of any license granted under the Agreement, we may suspend access to the Services and/or the Data and you shall give us access on reasonable notice to such systems, premises and information as we may reasonably request to assess such compliance, provided we shall take reasonable steps to minimize any interruption to you.

Nothing in the Agreement shall operate to transfer ownership to you of any Intellectual Property Rights, or prevent or restrict the use of any techniques, methods, ideas and know-how that we may acquire during the performance of the Agreement, provided such use does not result in the use or disclosure of any of your Confidential Information in breach of the Agreement.

Any rights granted to you under the Agreement are personal to you and shall not be considered granted or sub-licenseable to any other person, including your Affiliates or associated bodies.

You shall immediately cease using (and undertake not to use) the Services from termination of the Agreement and permanently delete or destroy all copies of the Data (and shall certify such deletion/destruction in writing upon our request). For the avoidance of doubt, termination shall not prevent the continued use of Data as part of any internal studies or reports authored by you in accordance with the Agreement (noting an exported data file, an automatically generated report or similar shall not be considered as having been authored by you).

3. Your general obligations

You shall: (a) provide us with reasonable co-operation, access and information as we may require, in order for us to perform our obligations under the Agreement, and carry out such acts or things on which that performance is dependent as we may reasonably request; (b) in using the Services and otherwise, comply at all times with all statutory regulations, including those relating to anti-bribery, anti-corruption and export controls, and user manuals/guidelines; (c) ensure that the End Users (as applicable) fully comply with the terms and conditions of the Agreement; (d) not remove, suppress or modify in any way the proprietary markings, including any trademark or copyright notice, used in relation to any part of the Services (including on any output generated through their use); (e) report to us any suspected material breach of the Agreement (together with details of any Loss you suffer or incur, or expect to suffer or incur) as soon as reasonably practicable, which shall not exceed fourteen (14) days after you have knowledge of such breach; and (f) ensure the proper and timely performance of any duties, responsibilities and other obligations assigned to you, and the accuracy of any assumptions, as set out in any proposal to which these Special Terms apply.

We shall not be deemed to be in breach of the Agreement or otherwise liable to you for any failure or delay in the performance of our obligations under the Agreement if such failure or delay arises from any act or omission of you (including your staff, agents or sub-contractors), including any incompleteness or other deficiency in any information you provide but which is not specifically referred to in the Agreement or any inaccuracy in any assumption set out in any proposal to which these Special Terms apply. Any timescales for the performance of our obligations shall be extended to take account, and we may charge you for additional time, effort and costs we reasonably incur as a result, of such act, omission or inaccuracy.

Unless otherwise agreed in writing, you will designate one (1) named, End User to be a single authorised point of contact with us regarding the Services and we will only accept enquiries and requests relating thereto from that authorised point of contact. You may re-designate the single authorised point of contact at any time by notice to us in writing.

4. Security and confidentiality

You shall not at any time disclose or make available our Confidential Information to any person or use it for any purpose other than to the extent reasonably required to perform your obligations under the Agreement and you shall ensure that any person to whom you disclose our Confidential Information complies with the obligations set out in this clause 4. You shall hold our Confidential Information in strict confidence and shall use all reasonable efforts to protect and maintain the security and confidentiality of the same, taking such precautions as are at least as great as those you take to protect your own confidential information.

Nothing in this clause shall: prevent a party from disclosing any Confidential Information to the extent required by statutory regulations, or a court or regulatory body of competent jurisdiction, provided it uses reasonable efforts (if permitted by law) to notify the disclosing party and gives the disclosing party a reasonable opportunity to challenge the disclosure; nor be deemed to have the effect of limiting any pre-existing duties of confidentiality you might owe to us. To the extent you require us to enter into a confidentiality agreement in connection with the subject matter of the Agreement, including prior to the date hereof, but which the Agreement is not intended to replace or otherwise supersede, you hereby agree that it will be subject to the same exclusions and limitations of liability as set out in the Agreement.

You shall prevent unauthorized access to or use of the Services via your networks, devices or systems and shall comply with any security policies and procedures relating to such access or use of which we notify to you from time to time.

You shall not knowingly distribute or otherwise transmit, and shall use all reasonable efforts to prevent the transmission of, any viruses, malware or other harmful code to or via the Services.

If you become aware of any unauthorized use or other security breach relating to any part of the Services, you shall immediately notify us in writing and shall provide such assistance as we may reasonably request to investigate and stop such unauthorized use or breach, and to prevent its recurrence.

You shall ensure that any Access Details are kept secret and not used by more than one person, unless expressly permitted by us, and where Access Details are assigned to a particular individual, they are only used by that individual. You shall immediately notify us if you become aware of any unauthorized disclosure or use of the Access Details, which we may suspend or de-activate if we consider it is reasonable to do so.

5. Additional Services

We may agree, or have agreed, to provide consultancy, custom or other one-off services (“Additional Services”) by signing a statement of work referring to the Agreement or agreeing in writing to a proposal describing such services (“SOW”). 

You shall not unreasonably withhold or delay the acceptance of any Deliverable, including if it meets the specifications and other acceptance criteria in all material respects. Within ten (10) Working Days (the “Acceptance Period”) of a request to do so (which may be by e-mail), you shall provide written confirmation that: (a) you have accepted the Deliverable(s); or (b) if you do not consider that the relevant acceptance criteria have been satisfied in all material respects, you have not accepted the Deliverable(s), together with full details of that non-compliance, and the parties shall discuss and resolve the issue as soon as reasonably practicable.

You will be deemed to have accepted a Deliverable if: (a) you fail to notify us in writing of your assessment of a Deliverable within five (5) Working Days of a written reminder from us (which may be by e-mail) requesting such acceptance, having already failed to provide such assessment within the Acceptance Period; or (b) where a Deliverable is software, by using that Deliverable in a production environment. 

All acceptance provisions in the Agreement shall only apply to Deliverables.  

We hereby grant to you a non-exclusive, non-transferable, personal right to use any Deliverables during the Term (save in respect of authored reports, which you may use indefinitely) solely for the internal purposes for which they are provided. If you require ownership or additional rights to any such Deliverable, such rights will be subject to a separate agreement, which we will act reasonably to agree. If Deliverables include configurations, customizations, interfaces, modifications, adaptations or derivatives to, extracts from, or are intended to be combined with, any Service(s) (including Data), you may only use those Deliverables in the same way and on the same terms as the relevant Service(s). Where a Deliverable is software, access to or use of the source code will not be permitted and will require a separate agreement, which we will act reasonably to agree. Where a Deliverable is an electronic resource to be made available by us on-line, we will make such resource available for the agreed period and otherwise in accordance with the SOW. For the avoidance of doubt, an exported data file, an automatically generated report or similar shall not be considered as an “authored report” or as having been created specifically for you and methodologies, underlying data and other materials provided to you in support of a Deliverable or other work product may only be used by you for your reasonable, internal evaluation purposes in respect of that work product and otherwise in accordance with any other relevant terms of the Agreement.  

We will be under no obligation to implement any request by you to amend any part of the Services or Additional Services that has not been agreed in writing.

6. Fees

Save as expressly provided, the amount of the Fees set out in the proposal shall be fixed for the relevant initial 12 month term (the “Initial Term”) and increase by three (3) per cent for each Renewal Period (being of the same length as the Initial Period). We may increase the Fees by more than three (3) per cent by giving you no less than ninety (90) days’ written notice prior to the expiry of the relevant Initial Term or (subsequent Renewal Period), such increase to apply with effect from the start of the relevant Renewal Period, and in such other circumstances as may be set out in the Agreement. You may choose not to agree to any such Fee increase, or not to renew the Initial Term (or Renewal Period), in which case you must inform us in writing no less than 60 days prior to the expiry of the Initial Term (or renewal period).  

Unless otherwise agreed, the Fees shall be payable (annually, in the case of subscriptions) in advance, by bank transfer to such account as we may nominate from time to time, within thirty (30) days of receipt of an invoice.

7. Term and Termination

Unless otherwise agreed, the Agreement shall commence on the last date of signature and continue for the Initial Term, subject to earlier termination in accordance with its terms, and unless otherwise agreed shall automatically renew for successive twelve (12) month periods (each a “Renewal Period”), unless either party gives written notice to cancel the Agreement no less than sixty (60) days prior to the expiry of the Initial Term or Renewal Period (as applicable).

Any right you to terminate for breach shall be limited to circumstances of material breach and, if such breach is remediable, the breaching party has failed to remedy that breach within thirty (30) days of being notified in writing to do so.

In the event of your termination for convenience, there shall be no obligation to repay any Fees paid in advance. 

Any right for you to claim any loss on termination shall be limited to circumstances where you have terminated for material breach and to third party costs that are reasonably incurred by you (with a duty to mitigate) as a direct result of such termination and agreed in advance to the fullest extent practicable or otherwise required by statutory regulations.

8. Miscellaneous

THE SERVICES, INCLUDING THE DATA, ARE PROVIDED FOR GENERAL GUIDANCE AND ILLUSTRATIVE PURPOSES ONLY ON AN “AS IS” BASIS WITHOUT ANY REPRESENTATION, CONDITION OR WARRANTY OF ANY KIND, TO THE EXTENT PERMITTED BY STATUTORY REGULATIONS, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY OR NON-INFRINGEMENT. IN NO EVENT SHALL WE BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY) OR OTHERWISE, FOR ANY LOSS ARISING FROM YOUR USE OF OR INABILITY TO USE OR RECEIVE THE SERVICES, INCLUDING THE DATA, OR DELIVERABLES SAVE TO THE EXTENT NOT PERMITTED BY STATUTORY REGULATIONS. YOUR SOLE AND EXCLUSIVE REMEDY IN THE EVENT OF ANY DEFICIENCY, NON-AVAILABILITY OR ERROR SHALL BE TO REQUEST THAT WE CORRECT THE MATTER AND, IF WE FAIL TO DO SO, TO DISCONTINUE USE OF THE SERVICES, INCLUDING THE DATA, AT YOUR OPTION.

Where the Services include links to third party websites, content and other resources, these are provided for convenience only and any access to, use of and/or reliance upon such resources is done entirely at your own risk and we disclaim all liability arising therefrom.

We may give you notice of information that is not specific to you or the Agreement by posting on a support, status or other webpage related to the Services.

We may publicly refer to you as a customer, including by listing you on our websites as such.

Neither party shall be liable for any delay in performing, or failure to perform, its obligations under the Agreement if such delay or failure arises from a Force Majeure Event. If a delay is caused, the affected party shall be entitled to a reasonable extension of time for performing its obligations. If the period of delay or non-performance continues for sixty (60) days, either party may terminate the Agreement by giving thirty (30) days’ written notice to other party which shall take effect only if the circumstances delaying or preventing performance exist at the expiry of that notice period.

Notwithstanding any other provision of the Agreement, any rights you may have to inspect, verify or audit us, our performance or any part of the Services shall be limited to such inspection, verification or audit as may be carried out: remotely unless required by law, and shall not include access to personnel or systems without our prior written agreement; on reasonable notice during working hours, but no more than once in any twelve (12) month period; at your own cost; and subject to you ensuring that any such inspection, verification or audit is undertaken without causing disruption and in accordance with any relevant policies and procedures. All information obtained or generated in connection with this clause shall be treated as our Confidential Information.

Notwithstanding clause 18 of the General Terms, it is agreed that we shall not provide any form of security (by way of a bond, guarantee, payment or otherwise) in respect of the Agreement. 

In the event of any conflict between these Special Terms and/or any part of the Agreement, the order of precedence shall be the Special Terms then the other part.

9. Limitation of liability

Nothing in the Agreement shall limit or exclude liability for: (a) fraud or to the extent not otherwise permitted by statutory regulations; or (b) any Fees that have become due (and the other provisions of this clause shall be construed accordingly). 

Notwithstanding any other part of the Agreement, including clause 14 of the General Terms, our total aggregate liability, whether in contract, tort (including negligence or breach of statutory duty or under indemnity) or otherwise, arising under or in connection with the Agreement shall be limited to the amount of Fees paid or payable under the Agreement in the twelve (12) month period preceding the first event giving rise to liability claimed for. 

We shall not have any liability whatsoever, whether in contract, tort (including negligence or breach of statutory duty) or otherwise, under or in connection with the Agreement for: any loss of profits, revenue, business or savings, depletion of goodwill and/or similar losses, or loss or corruption of data; nor for any special, punitive, indirect or consequential loss. No claim may be brought by you more than twelve (12) months after it has arisen. 

Notwithstanding any other provision of the Agreement, we shall not be liable for any infringement or other violation of rights arising from any of the following: your breach of the Agreement or arising from: (i) any modification not carried out by us or in accordance with our instructions; (ii) any combination or usage with any product, data, system or service that we did not provide; (iii) use of a non-current version or release of the Services; (iv) any third party data, software or materials; (v) use in a way which you have been notified could be infringing; or (vi) any act or omission of you (including any End User).

Definitions and interpretation

In the Agreement, the following terms shall, unless the context otherwise requires, have the meanings below. 

Access Details: the unique user name(s) and password(s), key(s), pin(s) or similar provided by us to you and/or an End User for the purpose of providing access to the relevant part of the Services.

Affiliate: any: (a) person which, directly or indirectly, controls, is controlled by or in under common control with us or, respectively, you; and in relation to Digital Science (b) any person in which a person referred to in (a) has a direct or indirect ownership interest.

Background IP: any Intellectual Property Rights in: any part of the Services; or any systems, products, data, information, algorithms or other know-how, and/or materials pre-existing or developed independently of the Agreement or used to create, visualise or make available any Deliverable, and configurations, customizations, interfaces, extracts, modifications, adaptations, transformations or derivatives thereof.

Confidential Information: information which is identified as confidential or otherwise of a confidential nature (including all trade secrets and information of commercial value) but shall not include any information which: is or becomes publicly known other than through any act or omission of the receiving party except that any compilation of otherwise public information in a form not publicly known shall nevertheless be treated as Confidential Information; was in the receiving party’s lawful possession before the disclosure without restriction on disclosure; is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or is independently developed by the receiving party, which independent development can be shown by written evidence.

Data: all information and data provided, developed or made available by us (and including all data accessible within or made available via the Services) and derived therefrom, including any that may be included as part of a Deliverable.

Deliverable: any work product to be delivered to you and created by us specifically for you as a part of the Services. 

Services: the platforms, applications and other products and services we agree to provide or make available to you as set out in the Agreement, and any configurations, customizations, interfaces, extracts, modifications, adaptations transformations or derivatives that we may develop for and/or make available to you in respect of such platforms, applications or other products / services. Reference to the Services shall also include Data and Additional Services, where the context permits.

End User: an individual end user who has been authorized by you to access and use the Services or who accesses and uses the Services using your systems or via an IP address that is registered or controlled by you.

Force Majeure Event: any circumstance beyond a party’s reasonable control and including any act of God, industrial action, failure with the internet or telecommunications networks or other infrastructure, act of government, change in law, war, terrorism or embargo.

Intellectual Property Rights: patents, trademarks, designs rights, trade and business names, rights in trade dress, domain names, copyrights, goodwill, the right to use and protect confidential information and know-how, database rights, and other intellectual property rights in each case whether registered or unregistered, which subsist, or will subsist, now or in the future in any part of the world.

Loss: any and all liabilities, losses and damages, claims, actions, costs (including reasonable legal fees), charges and expenses of any nature whatsoever.

Term: the Initial Term and any Renewal Period. 

Working Days: Monday to Friday excluding public holidays or, in respect of maintenance and support, public holidays in the jurisdiction from which that maintenance and support is provided.

In the Agreement, unless otherwise specified, reference to: (a) “includes” and “including” shall mean including without limitation and general words shall not be given a restrictive meaning by reason of the fact that they are followed by particular examples intended to be embraced by the general words; (b) use for “internal purposes”, “internal business purposes” or similar shall mean use for internal operations and (without limitation) shall in no circumstances include any use which would breach the restrictions referred to in clause 2(b); (c) to delegating or sub-contracting or similar shall be limited to the delegating or sub-contracting done pursuant to the Agreement, of obligations specific to a party.

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