General Terms and Conditions
1. DefinitionsIn addition to the terms defined elsewhere in the Agreement all capitalized terms have the meaning as set out below in these GTC: Agreement means the entire agreement between the parties, on the one hand CUEZ.tv bvba, with registered office at 3000 Leuven, Belgium, De Hoorn Sluisstraat 79 03-01 with company number BE0564.886.527, and on the other hand the Client, concerning the delivery of CUEZ PaaS. The Agreement consists of the Commercial Offer, these general terms and conditions, the Data Processing Agreement and all additions and amendments thereto, as well as (additional) instructions set forth in the Commercial Offer. The terms not defined herein shall have the meaning given in the applicable laws and regulations. Authorized User means each physical person in Client’s organisation (who is granted access by Client and will or must be able to use the CUEZ PaaS as an end user. Business Day means a normal working day CET from Monday to Friday, excluding Belgian public holidays. Client Data means all the data submitted, stored, posted, displayed, transmitted or otherwise used by Client on the CUEZ PaaS. Commercial Offer means the offer as agreed upon between the Client and CUEZ, as set out on the cover page, titled “Commercial Offer”. Confidential Information means any information of a non-public, confidential or proprietary nature, whether of commercial, financial or technical nature, customer-, supplier-, product- or production-related or otherwise, including samples, information relating to, specifications, CUEZ PaaS, patent applications, process designs, process models, materials and ideas, disclosed by the disclosing Party to the receiving Party. Content means ideas, concepts, scripts, audio-visual material, (contact) data and other creative work of the Client that is uploaded or entered into CUEZ PaaS by CUEZ.tv. Control means the power, factual or by law, to exercise a decisive influence on the designation of the majority of the directors of a company, or on its management. Notably, there is legal control when it results from the possession of the majority of the voting rights linked to the shares of the controlled company. Documentation means the documentation with regard to the CUEZ PaaS and annexed to the Commercial Offer. Error means an Incident that constitutes a defect, bug or error in the CUEZ PaaS. Incident means an incident or problem that the Client may incur, this may or may not be an Error. Intellectual Property Rights means any intellectual property rights, including copyrights, trade and service marks, trade names, rights in logos and get-up, inventions, Confidential Information, trade secrets and Know-How, registered designs, design rights, patents, utility models, all rights of whatsoever nature in computer software and data, all intangible rights and privileges of nature similar or allied to any of the foregoing, in every case in any part of the world and whether or not registered; and including all granted registrations and all applications for registration, all renewals, reversions or extensions, the right to sue for damages for past infringement and all forms of protection of a similar nature which may subsist anywhere in the world. Know-How means any information relating to commercial, scientific and technical matters, inventions and trade secrets, including but not limited to any patentable technical or other information which is not in the public domain including information comprising or relating to concepts, discoveries, data, designs, formulae, ideas, reports and data analyses. License Fee has the meaning as set out in Clause 3 GTC (License Fee) and can be the entire sum or only parts or elements of it. Taxes means any value-added tax (VAT), sales tax, income tax, consumption tax or any other similar applicable tax, duty, fee, levy or other governmental charge, customs duties and other levies. CUEZ Account means the account that the Client creates on the CUEZ PaaS and is activated by CUEZ.tv for the Authorized Users. CUEZ PaaS means the platform and services offered by CUEZ.tv regarding the use and maintenance of CUEZ, including the Platform-as-a-Service and the related products and services. Updates means all updates, modifications and releases of new versions of the CUEZ PaaS containing improvements, corrections, minor modifications, bug fixes, patches, or the like that have been publicly announced by CUEZ on its website. Upgrades shall mean all modifications, new features, enhancements, releases of new versions of the CUEZ PaaS and similar developments of it which have not been announced already as Updates by CUEZ on its website. Such Upgrades may be subject to additional charge and require a separate agreement by the Parties and/or are specifically designed for or requested by Client.
2. Grant of License
2.1 LicenseCUEZ grants to the Client, and the Client accepts from CUEZ a personal, restricted, non-exclusive, non-transferrable and non-assignable license to use the CUEZ PaaS to the extent as defined in the Agreement ( License ). Any other use requires the prior written consent of CUEZ. Without prejudice to the above, Client shall not otherwise without prior written consent of CUEZ: a) modify, create any derivative work of, or incorporate into any other product the CUEZ PaaS or any portion thereof; b) market, transfer, disclose rent, lease, lend, sell, copy, redistribute or sublicense the CUEZ PaaS by itself or with other unauthorized software to any other third party or in combination with third party products.
2.2 Reverse Engineering and ModificationsUnless enforcement of this provision is prohibited by applicable law, the Client shall not under any circumstances attempt, or knowingly cause or permit others to attempt to modify, decompile, disassemble, reverse engineer, decipher, decrypt or otherwise discover the source code or any other parts of the mechanisms and algorithms used by the CUEZ PaaS nor remove restrictions or create derivative works of the CUEZ PaaS or of any part of the CUEZ PaaS. The Client may not alter, modify, adapt, port or merge the CUEZ PaaS or any part thereof.
2.3 OwnershipThe Client recognizes that all Intellectual Property Rights related to the CUEZ PaaS and Documentation shall remain the property of CUEZ or its suppliers. Unless otherwise agreed upon between the Parties, any Intellectual Property Rights in any Updates, Upgrades, enhancements, modifications, inventions, developments, improvements of any kind to, in, or that otherwise relate to the CUEZ PaaS, including any derivative work during, before or after the Term of this Agreement, either specific to a customer or in general in connection with this Agreement shall solely and exclusively belong to or be transferred to CUEZ through assignment, entitlement or otherwise, including the entire right, title and interest. For this purpose, CUEZ shall also have the right to file and prosecute at its own expenses any patent application on the same above, in any country, region or jurisdiction in the world in its own name or on behalf of Client, as the case may be. Client shall not do anything that might misrepresent, change or otherwise compromises the ownership or proprietary rights of CUEZ or its suppliers under this Agreement. Client shall not take any actions that would amount to an exhaustion of CUEZ’s or its suppliers Intellectual Property Rights. CUEZ recognizes that all Intellectual Property Rights related to the Content shall remain the property of the Client or its licensors.
3. License fee and invoicing
3.1 License fee3.1.1 The Client shall pay to CUEZ a periodically recurring license fee as defined and structured in the Agreement (the License Fee). Prices are agreed between the Client and CUEZ.tv according to the price table set forth in the Commercial Offer. Payments must thus be made in accordance with Annex 01 and within the conditions set out in this article. Optional modules may be ordered during the course of the Agreement at the request of the Client and added to the agreed prices in accordance with the GTC. 3.1.2. CUEZ shall provide full functionality of the CUEZ PaaS, if Client has paid the License Fee in accordance with the Agreement. CUEZ is entitled to suspend the activation of the CUEZ Account until full payment of the relevant invoice without additional prior written notice. 3.1.3. Considering the fair market value of CUEZ PaaS, CUEZ may adjust the structure and amount of the License Fee: a) at the end of a contractual Term, in case of any renewal or extension of the then current Term of the Agreement subject to a yearly re-evaluation of the License Fee by CUEZ and as agreed by the Parties; b) at any time, in case Parties have agreed a specific Upgrade of CUEZ PaaS; c) except for the first three (3) months after activation, at any time upon one (1) month prior written notice, provided CUEZ demonstrates extraordinary changes on the market of more than four (4) % (‘Price Alignment’) including but not limited to, a specific cost component increase, currency fluctuation, higher or additional royalty commitments, provided such Price Alignment is proportionate to such additional costs. If a Price Alignment results in an increase by more than thirty (30) % of the then applicable License Fee, Client is entitled to terminate this Agreement for cause with the effective date of such Price Alignment. However, any adjustment of the License Fee shall not be retroactive. d) annually on 1 January, to the evolution of the consumer price index as published by the Belgian government, using the following formula:
New price = old price x In/Io Whereby: In = the last published index figure Io = the index taken into account for the previous adjustment or, in the case of a first adjustment, the index for the month preceding the month in which this Agreement was concluded. This indexation shall be applied automatically and without prior notice to the prices contractually agreed with the Client. Under no circumstances may indexation give rise to termination of the Agreement by the Client. 3.1.4. Any Taxes on payments to be made pursuant to this Agreement are for the account of the Client, unless Client provides CUEZ with a valid tax exemption certificate authorized by the appropriate taxing authority Taxes will appear as separate items on the invoice. If mandatory applicable law requires Client to withhold any Taxes on payments under this Agreement, the License Fee as agreed by the Parties shall be adjusted upwards to reimburse CUEZ for such Taxes. Client shall notify CUEZ in writing and in advance of any withholding tax.
3.2 InvoicingThe License Fee will become payable as set out in the Commercial Offer. All payments of invoices correctly issued by CUEZ to the Client under these GTC shall be final and non-refundable, unless stipulated otherwise. Invoices are sent by email in PDF-format to the Client’s contact person(s), named in the Commercial Offer. The Client may explicitly request CUEZ in written to send a copy of the invoices to a physical address, without prejudice to relevant legal requirements. Client agrees to make all payments due to CUEZ under the provisions of these GTC or any Commercial Offer within thirty (30) days of the date of invoice, unless Parties have agreed otherwise in writing. Client agrees to make every payment due to CUEZ under the provisions of these GTC in EUR. In event of late payment, all Client payment obligations to CUEZ will immediately become due and payable. All fees payable to CUEZ under these GTC shall be paid without the right to set off or counterclaim and free and clear of all deductions or withholdings whatsoever, unless the same are required by law, in which case the Client undertakes to pay CUEZ such additional amounts as are necessary in order that the net amounts received by CUEZ after all deductions and withholdings shall not be less than such payments would have been in the absence of such deductions or withholding. Sums stated to be payable under these GTC do not include any applicable value added tax or other taxes, which shall be additionally charged to the Client. The Client is responsible for payment of all general, state or local import, usage, value added, withholding or other taxes associated with the supply or use of the CUEZ PaaS. The Client shall promptly reimburse CUEZ for any such taxes or duties paid by CUEZ. The amount of any invoice which has not been paid within thirty (30) days from the invoice date shall automatically be subject to a late payment interest equal to the legal interest rate of the Act of 2 August 2002 on late payment interests in commercial transactions, which interest shall be compounded daily as of the due date until receipt of full payment by CUEZ. In addition, Client shall pay all costs incurred by CUEZ as a result of the (extra)judicial enforcement of the Client’s payment obligation under this article. If Client fails to pay any outstanding amounts within thirty (30) days from receipt of a written default notice, CUEZ shall be entitled to suspend its obligations and the Client’s rights hereunder until receipt of payment of such outstanding amounts. An invoice which is not contested within eight (8) days after receipt, shall be deemed accepted.
3.3. Non-ComplianceIf the Client does not comply with its obligation under this Clause 3 GTC (License Fee) CUEZ may terminate the Agreement in accordance with Clause 11.1.2 GTC (Termination for Cause).
4. Marketing and use of nameClient is benefiting from discounted License Fees provided Client has chosen to grant CUEZ marketing rights to the extent as defined in the Agreement. Without such marketing rights the License Fees are increased by a percentage of 30%. The Client grantst to CUEZ) a personal, restricted, non-exclusive, non-transferrable and non-assignable license to use the Client’s trademarks and logo’s. Client shall not register or make any filing with respect to any trademarks, names, or other designations of CUEZ anywhere in the world. Client shall not contest anywhere in the world of any trademark, name or other designation of CUEZ. Client will not take any action to remove trademarks or reference to CUEZ PaaS product name or website from CUEZ PaaS, or that might misrepresent the ownership of CUEZ PaaS by CUEZ.
5.1. Support5.1.1. CUEZ shall establish a Service desk that provides assistance by answering calls, chats and mails from authorised (key) users of the Client in Dutch, French or English. The Service desk shall provide a response, within the response times (see below), in case of Incidents or problems. The Client can choose from the following three formulas: 5.1.2. If the Client has not chosen Pro Premium support, the Client can still benefit from the following different Service Times/Standby Service for an additional fee:
5.2 Incident managementA complaint must be reported to CUEZ as soon as possible after the occurrence of the fact that led to the complaint, stating all information relevant to the complaint. This will enable CUEZ.tv to investigate this complaint and, if necessary, to respond adequately to it. All adverse consequences for not immediately reporting the complaint will be borne by the Client. CUEZ will remedy problems, which do not constitute Incidents, by responding in a timely manner to the indicated problem. In the event of an Incident which does not amount to an Error, CUEZ shall respond within the following timeframes: In the event of an Error, CUEZ shall respond within the following timeframes: Within the response time, the relevant Authorized User of the Client must be contacted by a sufficiently qualified professional (via e-mail or chat app ) and the analysis of the Incident/Error must have initiated.
5.3 AvailabilityAvailability is the period during which the Client and its users of CUEZ PaaS can make normal use of CUEZ PaaS and the services associated with it. Unavailability is considered as downtime. CUEZ shall use its best efforts to ensure an availability of the environment of 99.00 %. CUEZ has the right at all times, for the purpose of eliminating a malfunction or performing maintenance work on the CUEZ PaaS, to put it temporarily out of operation. CUEZ shall timely announce these planned (maintenance) activities on the CUEZ PaaS, whereby such (maintenance) activities shall take place outside of the Client’s office and/or working hours as much as possible. The daily and operational management of the Client shall be hindered or negatively affected as little as possible. The availability is measured and assessed within one calendar month. Planned maintenance is not taken into account as a period of unavailability, as far as this remains within the limits of 4 hours per month. Unavailable periods caused by Force Majeure shall not be counted as unavailable time .
5.4. Risk of data storageCUEZ undertakes to ensure a careful storage and proportional security level of the CUEZ PaaS and the data and information originating from the Client, in such a way that unauthorized third parties can not gain access to it. To this end, CUEZ takes all reasonable, proportionate organizational and technical security measures (as described in the Data Processing Agreement). The Client bears the risk of damage to or loss of the data and information stored by CUEZ or third parties, if this damage or loss is due to an error, intent and/or deliberate recklessness on the part of the Client himself, his management and/or his managerial staff. Subject to this Agreement, the Client hereby grants CUEZ a limited, non-exclusive, royalty-free, worldwide license to use the Client Data and perform all acts with respect to the Client Data as may be necessary for CUEZ to provide the Services to the CLient. To the extent that receipt of the Client Data requires CUEZ to access and upload Client Data from a third party service provider, the Client shall be solely responsible for obtaining and providing relevant account information and passwords, and CUEZ hereby expressly agrees to access and use the Client Data solely for the CLient’s benefit and as set forth in this Agreement. As between CUEZ and the Client, the Client is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data.
6. Warranties6.1 CUEZ warrants that CUEZ PaaS works in accordance with the minimum technical requirements provided by CUEZ to the Client in accordance with the Documentation. CUEZ does not provide any warranty as to quality, suitability, Description Response times Updates Urgent An Error that is so severe that it seriously compromises the Cli services and programs. 1 working hour Every 2 working ho Critical An Error that has a substantial or serious effect and therefore ca serious inconvenience to the users of the CUEZ PaaS wit them being able to apply a workaround themselves. 2 working hours 2 times a day Non-critical Any other Errors that do not cause inconveniences to the users of CUEZ PaaS because they can easily be avoided or an work-around is available. 2 working days e NA features, compatibility of CUEZ PaaS other than as mentioned in such general Documentation. CUEZ PaaS is provided with warranty of merchantability or fitness for the scope of License as mentioned in the Documentation excluding any other particular purposes. Moreover, CUEZ warrants that it provides its support service with reasonable care and skill in accordance with the Agreement, which constitutes an obligation of means. 6.2. The foregoing warranties apply during the period after initial activation or any renewal date as agreed by the Parties in the Agreement (Warranty Period). After expiration of the Warranty Period CUEZ PaaS and all support services under this Agreement are provided “as is” without any other warranty. For the avoidance of doubt, the support and maintenance services as set forth in Article 5 of the se GTC apply throughout the entire Term of the Agreement. 6.3. These warranties are Client’s exclusive warranties and shall replace any other warranties, express or implied. The warranties do not include any error-free or uninterrupted operation of CUEZ PaaS. CUEZ does also not warrant the correction of all defects. This Agreement does not provide any representation or warranty as to any third party software. In the event that a warranty claim, the sole recourse consists of a repair or a replacement of relevant CUEZ PaaS software elements. Except for the express warranties under this provision, CUEZ makes no further representation or other warranties, express or implied, statutory or otherwise, including but not limited to CUEZ PaaS merchantability, fitness for a particular purpose, non- infringement or its accuracy. 6.4. Client warrants that the information to be provided is correct and complete. The Client indemnifies CUEZ against the consequences arising from the incorrect and/or incomplete nature of the information. 6.5. Client warrants that it will use the CUEZ PaaS for legal and legitimate purposes. Moreover, these may only be used in such a way that the rights of third parties, including but not limited to intellectual property rights, are not infringed.
7. Indemnification7.1. CUEZ will be given prompt written notice of any third party claim on an alleged or actual infringement by the Licensed Materials or other material made available by CUEZ, and will be granted the right to control and direct the defense and settlement of such a claim. Client shall be entitled to participate in such proceedings at its own cost. CUEZ must keep the Client regularly informed of the status of the proceedings and/or settlement negotiations. Client agrees to reasonably cooperate with CUEZ in the defense and settlement of such a claim. 7.2. CUEZ shall indemnify, defend and hold harmless the Client from and against all claims and actions brought against the Client, its officers, directors, employees, agents and successors and pay for all actual direct damages, costs, expenses, and reasonable attorney fees that a court awards or as agreed in a settlement with CUEZ’s approval resulting from or arising out of an infringement of any patent, copyright and trademark of any third party caused by the use of CUEZ PaaS, provided that Client will give CUEZ prompt notice in writing of any such claims, permits CUEZ to control the defence or settlement of it and cooperates with CUEZ in this respect. Client shall pay any additional costs and damages caused by its failure to comply with the obligations as set out here before. CUEZ shall not be liable for settlement, related amount or any transactions agreed with regards to such infringements without the prior written consent of CUEZ. Client may employ its own counsel, at its own option and expense without interference of the proceedings. 7.3. Such obligation of CUEZ to indemnify Client does not exist if such infringement is attributable to and caused by Client, in particular if such claim results from: (i) Client’s unauthorized use of the CUEZ PaaS by Client or its Authorized Users; (ii) an alteration or modification of CUEZ PaaS by Client or its Authorized Users not in alignment with the Agreement and without the authorization of CUEZ and the claim would not have been occurred but for such alteration or modification; (iii) a modification of CUEZ PaaS as requested by Client in accordance with its specifications; (iv) the use of the CUEZ PaaS in combination with any other product of Client or a third party, not provided or approved by CUEZ; (v) circumstances where CUEZ PaaS predominantly or alone would not be the subject of the infringement claim; (vi) Client’s failure to install the provided Updates of the CUEZ PaaS that would have avoided the infringement; (vii) where Client or by means of its Authorized Users continues using CUEZ PaaS after being informed of the alleged infringing activity. CUEZ provides no warranty and Client will reimburse CUEZ for any costs or damages resulting from these actions. 7.4. Upon discretion of CUEZ and in order to eliminate or avoid the infringement, CUEZ may at its expense and at its sole discretion a) to modify or replace the infringing part with a non-infringing part, b) obtain the necessary rights from relevant third parties c) terminate the Agreement with immediate effect and refund the License Fee on a prorated basis. 7.5. CUEZ shall have no obligation for payment of royalties or any other compensation to third parties, if any, with respect to the use of CUEZ PaaS by Client or its customers, clients, viewers, listeners in connection with the Content or third party products. 7.6. In case any alleged or actual Intellectual Property Rights infringement relating to the CUEZ PaaS is arising, the Client shall immediate cease the use of these Solutions. In case the Client neglects this obligation, CUEZ may at its sole discretion terminate the GTC with immediate effect and without any compensation or indemnification due by CUEZ whatsoever. 7.7. Any claim of Client in connection with such infringement above shall be the sole exclusive remedy of Client under this Agreement. 7.8. Client shall indemnify, defend and hold CUEZ harmless from and against any damages, losses, costs and expenses (including reasonable attorneys’ fees) suffered or incurred by CUEZ arising out of (i) Client’s infringement of any third party’s intellectual property rights and/or (ii) the use of the Content.
8. Limitation of liability8.1. CUEZ shall perform its task as may be expected of a professional company in its line of business. Subject to the maximum extent permitted by applicable law, CUEZ’s liability under these GTC in respect of each cause of damages (whether a single event or a series of events) shall not exceed all fees paid by Client to CUEZ under the present GTC for a period of six (6) months applicable at the date of the event (or last of the series of connected events) giving rise to any claims of Client’s customers or business relationships and this per cause of damage. CUEZ shall not be held liable in any way, neither contractually nor extra-contractually, for discontinuing an older Release of the Solution. Client shall at all times during and after the term of these GTC indemnify, keep indemnified and hold CUEZ harmless against all claims, demands, actions, proceedings and all losses in relation to any breach of these GTC by Client, Authorized Users or end users, any negligent or wrongful acts or omissions of Client, Authorised Users or end users under these GTC, any failure to act or misrepresentation by the Client, Authorized Users or end users and/or any faults and omissions in the performance of its obligations pursuant to these GTC, resulting into claims of third parties. 8.2. Under no circumstances shall CUEZ be liable to the Client for any indirect, punitive, special consequential or similar damages (including damages for loss of profit, lost revenue, loss of business, loss or corruption of data, loss of customers and contracts, loss of goodwill, the cost of procuring replacement goods or services, and reputational damage) whether arising from negligence, breach of contract or of statutory duty or otherwise howsoever. Each Party shall have the duty to mitigate damages. The exclusions and limitations of liability under this article shall operate to the benefit of CUEZ’s Affiliates and subcontractors under these GTC to the same extent such provisions operate to the benefit of CUEZ. 8.3. Notwithstanding any other provision of Agreement, neither Party shall be liable vis-à-vis the other Party or to any third party, whether in contract (including under any indemnity or warranty), in tort (including negligence) under a warranty, under statute or otherwise, under or in connection with the Agreement for any indirect, punitive, incidental or consequential damages, lost revenue, lost profit, interruption of use, lost data or corrupted data, costs of procurement for substitution of products or services, third party software and claims, provided information, wasted management time, loss of use of computer systems and related equipment, downtime costs, however caused, arising out of the Agreement or the termination thereof even if a) the Party has been advised of the possibility of such damages; or b) the damages were foreseeable. The limitations of liability set out in this article do not apply if the damage is due to intent, fault and/or deliberate recklessness on the part of CUEZ, its management and/or its executive staff or third parties engaged by it. 8.4. Even in the event that CUEZ cannot provide the agreed online services, CUEZ is not liable, except when the non-delivery of the relevant online services is the result of a shortcoming attributable to CUEZ and exclusively for the part that was within the sphere of control of CUEZ and in accordance with the limitation of liability as set forth hereabove. The availability of the internet depends on the internet itself, the service provider of CUEZ and the telecommunications provider of CUEZ or the telecommunications provider of the Client. Therefore, the availability of the online services in certain cases (e.g. in case of unavailability of internet) is beyond the sphere of control and responsibility of CUEZ so that CUEZ will not accept any liability in this respect. 8.5. The provisions of this Clause 8 (Limitation of Liability) shall not apply to the extent restricted or prevented by mandatory applicable law that cannot be amended or excluded by contractual waiver.
9.1 Treament of Confidential InformationConfidential Information may be used by the receiving Party in any form which is reasonable and in connection with the Agreement subject to the limitations of confidentiality under this Clause 9 GTC (Confidentiality). The receiving Party agrees and undertakes that for the duration of the Agreement as well as for five (5) years thereafter, it will keep confidential and will not use for its own purposes nor without the prior written consent of the disclosing Party divulge to any third party any Confidential Information of the disclosing Party or its activity it has received or obtained in the framework of the Agreement. The disclosure within its enterprise to another affiliate of the receiving Party for the purpose of implementing the Agreement does not require the prior written consent of the disclosing Party but a prior notification in order to inform the disclosing Party. The disclosing Party retains all right, title, and interest to its Confidential Information. Content of the Client shall be treated strictly confidential and considered Confidential Information.
9.2 ExclusionThe provisions of Clause 9 GTC (Confidentiality) shall not apply to any Confidential Information of the disclosing Party that: a) at the time of disclosure, is generally known to the public through no fault of the receiving Party; or b) at the time the of disclosure, has been made available to the receiving Party by a third party having the lawful rights to do so without breaching any such obligation of non-use or confidentiality; or c) is proven by the receiving Party to have been independently developed by the receiving Party without making use of the Confidential Information of the disclosing Party; or d) the receiving Party is required to disclose in compliance with applicable laws, or to comply with governmental regulations. The receiving Party provides prior written notice of such disclosure to the disclosing Party and takes reasonable and lawful actions to avoid and/or minimize the degree of such disclosure and affords the disclosing Party as much notice as possible of such disclosure to allow the disclosing Party to do likewise.
9.3 Confidential TermsEach Party agrees not to disclose any terms of the Agreement, except for the permitted disclosure under Clause 9 GTC (Confidentiality) to any third party without the prior written consent of the other Party who must not unreasonably refuse, withhold, or delay the giving of consent.
10. TermThe Agreement shall commence and expire as agreed by the Parties, for a period of 1 (one) year (“Initial Period”) unless it was terminated before in accordance with these GTC. The term shall be tacitly renewed for the same period, unless notice of termination is given by the Client.
11. Termination and Suspension
11.1 TerminationThe wish to terminate the agreement must be notified to CUEZ in writing by e-mail no later than 1 (one) month before the Initial Period expires. In the event that the Client wishes to terminate the Agreement after the Initial Period, Client will respect a notice period of at least 1 (one) month. In the event that CUEZ wishes to terminate the Agreement after the Initial Period, Client will observe a notice period of at least 1 (one) month and inform the Client by e-mail of the intended termination. In the event that a Party does not agree with an amendment to the Agreement, this Party may terminate the Agreement prematurely, taking into account an interim notice period of 3 (three) months, starting on the next month after the notice of termination. CUEZ may terminate these GTC or suspend the Professional Services and/or user rights granted hereunder by written notice to the Client if the Client fails to pay to CUEZ any amount due hereunder and the Client fails to cure such failure to pay within thirty (30) days from the date of such notice. The Client acknowledges and agrees that any use of the CUEZ PaaS outside the scope of the license as set forth in these GTC, unless such use has been expressly approved in writing by a duly authorized representative of CUEZ, shall entitle CUEZ to immediately terminate (or alternatively, at CUEZ’s option, suspend) one or more of the licenses granted hereunder and/or the GTC for material breach by the Client, without any formalities being required and without prejudice to any other right or remedy available to CUEZ pursuant to these GTC or under applicable law. Either Party may terminate these GTC by written notice to the other Party if the other Party materially breaches these GTC and fails to cure such breach within 30 days from the date of receipt of such notice by the breaching Party, provided that CUEZ shall be entitled to terminate these GTC (or alternatively suspend the Professional Services and/or user rights granted hereunder) on giving written notice in the event the Client breaches the license terms hereunder or infringes CUEZ’s intellectual property rights. By refining and developing features, the services of CUEZ may change in the meantime. These changes can be made at any time and without prior notice. Only major far-reaching developments or changes will be made available to the Client by CUEZ after prior and timely notification (CUEZ reserves the right to request additional costs in the event of new features, insofar as the Client has notified in writing in advance that it wishes to purchase such new features), whereby the material functionality of the Client’s services and the (peripheral) equipment used by the Client will not change and without this affecting the Client’s possibilities of use. Maintenance work, or changes (provided they are not new features) will not take effect until one (1) month after it has been announced by CUEZ.tv, or as much longer as reasonably possible. Developments or changes shall be implemented as much as possible outside the office and/or working hours of the Client and always in such a way that the daily and operational management of the Client is not hindered or negatively affected. CUEZ reserves the right to release new features at its own discretion, although it undertakes to inform the Client of such release immediately. If CUEZ is forced to stop providing the services for demonstrable technical or economic reasons, CUEZ shall communicate this to the Client as soon as possible, taking into account a reasonable period of at least 3 (three) months. In such a case, CUEZ shall make all reasonable efforts to try to make a replacement service available to the Client in the near future. At the request of the Client, CUEZ shall make the Content available free of charge to the Client or to third parties to be designated by the Client in the electronically common form desired by the Client. Without prejudice to any other rights to which it may be entitled, ither Party may, without penalty or liability, terminate these GTC by written notice to the other Party, effective as of the date of delivery of such notice, with immediate effect in accordance with applicable law and without court authorization, including but not limited to the following reasons: a) if an order is made or a resolution is passed for the winding up of the other Party or the appointment of an administrator or receiver to manage the affairs, business, property and assets of the other Party or any similar or analogous action in consequence of debt; b) if the other Party becomes the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business c) extraordinary circumstances, unforeseen by the Parties, which would make this Agreement resulting in an illegal action of a Party; or which substantially affect and disturb the cost structure or the initial economic value of the Agreement in an unreasonable manner so that an adherence to the contract would be unreasonable or unfair
11.2 Effects of Termination11.2.1. All rights granted to the Client under the Agreement shall forthwith terminate and immediately revert to CUEZ. Unless otherwise agreed, all use of CUEZ PaaS shall be discontinued. Each Party shall promptly return any property of the other Party. 11.2.2. Termination of the Agreement for any reason will not affect accrued rights, indemnities, existing commitments until fulfilment or any contractual provision that by their nature are intended to survive termination. Any Party hereto shall not be released from any obligation which, at the time of such termination, has already become due to the other Party or which is attributable to a period prior to such termination nor preclude either Party from pursuing any rights and remedies it may have hereunder or at law or in equity with respect to any breach of the Agreement. 11.2.3. In case of termination of the Agreement, all unpaid License Fees shall become immediately collectible and CUEZ shall be entitled, in addition to any other remedies available to it, to take all necessary steps to collect such amounts, together with all costs, indemnities, compensations, damages, fees and expenses incurred by CUEZ.
For the same reasons under Clause 11.2 instead of termination for cause, CUEZ may, without any further notice, suspend temporarily the License, the activation of CUEZ PaaS and related services until the relevant cause was remedied to the full satisfaction of CUEZ.
12. Miscellaneous provisions
12.1 Independent ContractorsBoth Parties are independent contractors under the Agreement. Consequently, nothing in the Agreement is intended or may be construed so as to establish a partnership or joint venture between the Parties and neither Party shall have the authority (actual or apparent) to bind the other Party.
12.2. No Implied Rights
Other than expressly provided for in the Agreement, nothing in the Agreement grants or shall be construed to grant to any Party any further or implied right or license to any Intellectual Property right or application therefore (including but not limited to patent applications or patents) which are held by or in the name of the other Party or which are controlled by the other Party, or to any Confidential Information received from the other Party.
12.3 Force MajeureExcept for payment obligations, neither Party shall be held in breach of its obligations hereunder to the extent only that due performance or observance of such obligation is prevented or delayed by any cause beyond reasonable control of such Party, including, but not limited to, war and other hostilities, civil commotion, accident, trade disputes, strikes or lock-outs, floods, fire, explosion, terror attacks, acts or restraints of government imposition or restrictions of imports or exports or any other cause not within the control of the Party concerned. The Party concerned shall forthwith notify the other Party of the nature and effect of such event and both Parties shall, where the same is practicable, use every reasonable endeavour to minimize such effect and to comply with the respective obligation herein contained as nearly as may be in their original form.
Save as otherwise provided in the Agreement, each Party bears its own costs relating to the negotiation, preparation and execution and implementation by it of the Agreement and of all other ancillary documents.