Cloud service agreement
Last edited 31st August 2020
This Agreement governs the use of the Smint.io Enterprise Content Buying and Smint.io Portals Platform software used as a CLOUD SERVICE and DOCUMENTATION as offered by Smint.io GmbH, Schubertstrasse 4/4 in 4020 Austria and as defined herein.
The parties to this Agreement are you or the entity you represent, including but not limited to your principals, employees, agents, AFFILIATES or contractors, or, if no such entity is designated by you, you individually (“CUSTOMER”, “you”, “your”, “yours”, “user”) as named in the ORDER DOCUMENTS and Smint.io, our AFFILIATES and SUB-PROCESSORs, principals and employees (“Smint.io”, “We”, “us” or “our”).
- “CLOUD SERVICE” means an IT-based services as described herein and accessible by CUSTOMER via an individual password-protected link and via Software-as-a-Service (SaaS) with its SDK, API, and other components marketed under the names “Smint.io Enterprise Content Buying” or “Smint.io Portals” including any updates or upgrades to such CLOUD SERVICE described in the Specification of Services (‘Annex 1 and 2) that are generally released/made available by SMINT.IO to all customers from time to time.
- “DOCUMENTATION” means our written materials or electronic files which relate to the CLOUD SERVICE including, but not limited to, system requirements, user manuals, help systems, release notes, specifications or training materials, that have been made available to you.
- “AFFILIATE” means any corporation or other business entity, now or hereafter existing, who directly or indirectly controls, is controlled by or is under common control with one of the contracting parties.
- “PURCHASE ORDER” is a document indicating or an online process that it is an order of SERVICES that incorporates or refers to the terms of this Agreement.
- “SUB-PROCESSOR” means a third-party subcontractor engaged by us who will process CUSTOMER DATA for delivering TECHNICAL SUPPORT, or providing the technical infrastructure, software development, features or components of the CLOUD SERVICE, or delivering other professional services related to the CLOUD SERVICE.
- “ORDER DOCUMENTS” means our proposals, order confirmations, and our other licensing documents which detail the SUBSCRIPTION PAN, licensed features, prices, payment schedules and other specific terms related to your purchase of and licensed use of the CLOUD SERVICE (or parts thereof) based on which you exclusively place your order and which specifically exclude any other terms, order form or documents provided by you.
- “SUBSCRIPTION PLAN” means our basic product offerings for the CLOUD SERVICE as defined at https://www.smint.io/en/pricing/ and the Specifications of Services which details eligible features, the level of TECHNICAL SUPPORT, and other specific benefits or limitations for your licensed use of the CLOUD SERVICE.
- “TECHNICAL SUPPORT” means our limited assistance related to the CLOUD SERVICE to verify potential Defects, provide Defect resolution and respond to your Support Queries as defined in the Specifications of Services (Annex 1 and 2).
- “NEW VERSIONS” means “Upgrades” and “Updates” of the CLOUD SERVICE provided by us from time to at our sole discretion.
- “CUSTOMER DATA” means all your files, content, metadata, Personal Data, Confidential Information and any other data stored or processed via the CLOUD SERVICE or for providing you TECHNICAL SUPPORT as per the terms of this Agreement.
- “NOT FOR RESALE” “Beta”, “Preview” (collectively “NFR”), means the CLOUD SERVICE provided and used for the purpose of evaluation, testing, proof of concept (POC), feature preview versions, or similar.
- “DATA PROCESSING AGREEMENT” means the valid Smint.io Data Processing Agreement (DPA) in its latest version as publised at https://www.smint.io/en/data-processing-agreement which sets out the obligations of the parties in relation to the collection and processing of CUSTOMER DATA in Smint.io’s role of data processor.
Use of CLOUD SERVICE
- Non-exclusivity, no other terms. We grant you a non-exclusive worldwide right and license to access and use the CLOUD SERVICE and any DOCUMENTATION as further described in this Agreement and in accordance with the ORDER DOCUMENTS. ORDER DOCUMENTS must be signed by us or an authorized Partner, and you. NO TERMS OTHER THAN THIS AGREEMENT SHALL APPLY TO thE CLOUD SERVICE and Specifications of Services . ANY TERMS CONTAINED IN documents THAT CONTRADICT OR AMEND THE TERMS OF THIS AGREEMENT ARE HEREBY EXPRESSLY REJECTED UNLESS AUTHORIZED BY US IN WRITING.
- Use under NFR or for free. You acknowledge and agree that if provided for free or under “Not for resale” terms, the CLOUD SERVICE may be limited in time, by features or other restrictions, and is pROVIDED TO you “AS IS”, “with all faults” and “as available”, AND SUBJECT TO MANDATORY APPLICABLE LAW, ALL sla, WARRANTY, guarantee OR LIABILITY OBLIGATIONS ARE EXPRESSIVELY EXCLUDED AND DISCLAIMED.
- DOCUMENTATION for the CLOUD SERVICE is provided in generic form and does not cover specific use cases or custom configurations. You may copy, distribute and change our DOCUMENTATION under the Creative Commons BY-SA 4.0 license unless such right is expressively excluded in the DOCUMENTATION. No warranty is given for any DOCUMENTATION modified by you or third parties.
- Third Party Software. You acknowledge that the use of the CLOUD SERVICE requires you to use certain installed or cloud-based third-party software (“Third Party Software”) such as operating systems, web browsers, runtimes, plugins, web or CLOUD SERVICEs, or similar that are subject to the terms and conditions of their corresponding licensors, and provision of such Third-Party Software & Services is hereby excluded from this Agreement and the purchase price. Additionally, the CLOUD SERVICE contains and uses open source third party software components. Use of such open source components are credited in the CLOUD SERVICE, where required under the applicable open source licenses and you acknowledge that your use of such open source components shall be subject to the applicable third-party licenses. We can provide you with a list of all open source components upon request.
- No modification, no reverse engineering. You shall not modify, adapt, port, translate, reverse engineer, disassemble, decompile or otherwise attempt to discover the source code of the CLOUD SERVICE unless such code is provided with the corresponding license declaration permitting you to do so. You shall not remove, modify or overwrite any product label, product identification, copyright notices, the AUP, this Agreement, privacy declarations and corresponding link references from the CLOUD SERVICE.
- Intellectual Property. The CLOUD SERVICE and associated materials such as DOCUMENTATION, logos, designs etc. are the sole and exclusive property of us and, our licensors or suppliers. Except as expressly stated, we do not grant you any intellectual property rights in the CLOUD SERVICE or any such associated material.
- Prohibited use. Neither you (“User”) nor persons who access the CLOUD SERVICE through you shall use the CLOUD SERVICE in a way prohibited by law, regulation, governmental order or decree; to violate, or encourage the violation of, the rights of others; to spam or distribute malware or any items of a destructive or deceptive nature; to falsify any protocol or email header information (e.g., “spoofing”); to try to gain unauthorized access to or disrupt any part of the CLOUD SERVICE, data, account or network by any means; to execute load, stress, performance, penetration or vulnerability tests; in a way that could reasonably harm the software and CLOUD SERVICE or negatively impair anyone else’s use of them; for collecting, storing, using or processing any personal data unless you have received prior consent from the relevant person or will receive such consent in a timely fashion; for any high risk use where failure or fault of the software or service could lead to death or serious bodily injury of any person, or to severe financial, physical or environmental damage.
NEW VERSIONS & Sub Processors
- Use of most current version. You are entitled to use the CLOUD SERVICE in the latest official version with all fees for NEW VERSIONS included in the price for the CLOUD SERVICE. This is not inclusive of all new features of NEW VERSIONS. We may provide NEW VERSIONS from time to time at our sole discretion and you agree that you are always required to use such latest New Version of the CLOUD SERVICE .
- Modifications through NEW VERSIONS. All NEW VERSIONS of the CLOUD SERVICE are subject to this Agreement. You acknowledge and agree that NEW VERSIONS may add, eliminate, or modify features as well as, change system requirements of the CLOUD SERVICE, Third Party Software, SDK components and SUBSCRIPTION PANs, and provide bug-fixes. We shall give you reasonable prior notice if we intend to substantially modify the CLOUD SERVICE. If the New Version will or has substantially modified the CLOUD SERVICE to your disadvantage you may terminate this Agreement in accordance with section 42 by giving notice of termination up to thirty (30) days after the New Version has been updated. After expiry of this period you shall be deemed to have accepted the New Version if not terminated by you. No modifications to the CLOUD SERVICE resulting from NEW VERSIONS shall be deemed to be material changes permitting you to terminate pursuant to Section 41.
Personal & Confidential Information
- Ownership of CUSTOMER DATA. You retain all right, title, and interest in and to your CUSTOMER DATA. We acquire no rights in CUSTOMER DATA other than the right to process CUSTOMER DATA as necessary to provide the CLOUD SERVICE or TECHNICAL SUPPORT to you.
- Confidential information. Each party may be given access to confidential data (collectively “Confidential information”) from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that (a) is or becomes publicly known other than through any act or omission of the receiving party; (b) was in the receiving party’s lawful possession before the disclosure; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party and for which written evidence can be provided; or (e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
- Each party shall hold the other’s Confidential Information in confidence and, unless required as per Section 24, not make the other’s Confidential Information available to any third parties, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees, AFFILIATEs, agents or SUB-PROCESSORs in violation of the terms of this Agreement. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by third parties other than AFFILIATEs or SUB-PROCESSORs.
- Notice of disclosure. In the event that either party is required to disclose Confidential Information pursuant to a court order, law or regulation, it shall, if permitted, provide the other party with notice thereof to give such party sufficient opportunity to take steps to prevent the disclosure.
- Use of names. The parties agree to use each other’s name for public statements, or any required notices only as expressly granted by the other party, and to coordinate in good faith on developing its content.
- Export of CUSTOMER DATA. You are entitled to request a simple standard export of your CUSTOMER DATA at any time, specific custom formats are explicitly excluded. We will provide such export for a handling fee of USD/EUR 2000 per up to 4 TB of CUSTOMER DATA, including costs for storage media but excluding costs for shipping, customs, and similar fees. Such export shall be executed no later than 30 days after you have order from us.
- Limited Warranties. Unless otherwise specified in this Agreement, we warrant that the CLOUD SERVICE will perform during the Term as per the terms in this Agreement, the DOCUMENTATION and the Specifications of Services for the SUBSCRIPTION PAN you have purchased (“Warranty”). If we cannot make the CLOUD SERVICE substantially perform as warranted, you are entitled to terminate this Agreement for cause as defined in section 41.
- WARRANTY DISCLAIMER. THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY us AND STATES YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY BREACH OF WARRANTY. we MAKE NO OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR OTHERWISE IN ANY COUNTRY OR JURISDICTION, RELATED TO OR ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE PROVISION OF THE CLOUD SERVICE UNDER THIS AGREEMENT. THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT with respect to the CLOUD SERVICE and TECHNICAL SUPPORT and any materials furnished or provided to you under this agreement ARE SPECIFICALLY excluded TO THE FULLEST EXTENT PERMITTED BY APPLICABLE In addition, you understand and agree that the CLOUD SERVICE and any materials or other services furnished or provided to you under this Agreement are not designed or intended for use in the operation of nuclear facilities, aircraft, weapons systems or life support systems.
- Indemnification by Smint.io. Subject to the provisions of Section 35 of this Agreement, we shall indemnify and defend you against claims made by an unAFFILIATEd third party that the CLOUD SERVICE infringes a third party’s intellectual property rights or makes unlawful use of its trade secret, except to the extent a claim or award is based on: (a) our use of CUSTOMER DATA in accordance with the terms of this Agreement; or (b) any modifications of the CLOUD SERVICE that is not performed by or on behalf of us; (c) the combination, operation, or use of the CLOUD SERVICE with any other products, services or equipment not provided by us or branded as our products or services, where there would be no Infringement Claim but for such combination; (d) your use of the CLOUD SERVICE other than in accordance with the terms and conditions of this Agreement; (e) any open source software included in the CLOUD SERVICE; and (f) any CLOUD SERVICE provided for free or NFR.
- Indemnification by CUSTOMER. You shall indemnify and defend us and our AFFILIATEs against any claims made by an unaffiliated third party that: (a) CUSTOMER DATA infringes the third party’s intellectual property rights or makes unlawful use of its trade secret; (b) arise from your violation of this Agreement.
- Should the CLOUD SERVICE become, or in our sole opinion be likely to become, the subject of a claim under section 31, we may at our sole discretion and at our own expense: (a) obtain the right for you to continue to use the CLOUD SERVICE; or (b) modify the CLOUD SERVICE to become non-infringing. If we determine, acting reasonably that these options are not commercially reasonable, we may terminate your rights to use the CLOUD SERVICE according section 41 and refund to you any unused advance payments for the CLOUD SERVICE.
- Each party must notify the other promptly of a claim made related to sections 31 and 32. The party seeking protection must: (a) give the other sole control over the defense and settlement of the claim; and (b) give reasonable help in defending the claim. The party providing the protection shall perform its obligations at its sole cost and expense and shall reimburse the other for reasonable out-of-pocket expenses that it incurs in giving that help and pay the amount of any resulting adverse final judgment (or settlement that the other consents to). This section 42 states the indemnifying party’s entire liability and the indemnified party’s sole remedy with respect to the infringement, violation, or misappropriation of any intellectual property rights of any third-party or unlawful use of a trade secret arising from or relating to this Agreement.
Limitation of Liability
- Limitation of Liability. To the fullest extent permitted by applicable law and subject to section 36 and 37, the aggregate liability of each party under this Agreement is limited to direct damages up to the amount paid under this Agreement for the CLOUD SERVICE (or parts thereof) giving rise to that liability during the 12 months immediately preceding the time the liability arose. Each party hereby releases and forever discharges the other party from any and all obligations, liabilities, claims, or demands in excess of the foregoing limitatio The parties acknowledge that other provisions of this Agreement rely upon the inclusion of this section.
- Neither party will be liable for indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if a party knew that such damages were possible.
- Nothing in this Agreement shall limit a party’s liability caused by its fraud, willful misconduct or gross negligence if such liability cannot be limited as per section 35 under applicable law.
Term, Termination, Suspension & Modification
- If not defined otherwise in the ORDER DOCUMENTS, this Agreement will commence on the date of purchase or when you start using the CLOUD SERVICE, whichever is earlier, and will for a) fixed annual SUBSCRIPTION PLANS continue for a period of 12 months (“Initial Term”), with automatic renewals for additional 12 months periods (each a “Renewal Term”; collectively “Term”) until terminated by either party pursuant to the termination provisions herein; and for b) dynamic SUBSCRIPTION PLANS continue for a period of 90 days with automatic renewal for additional 90 days until terminated by either party pursuant to the termination provisions herein.
- Termination of fixed price plans. Subject to the Term, and if not defined otherwise in the ORDER DOCUMENTS, either party may terminate this Agreement with effect at the end of each 12 month period by giving at least ninety (90) days prior written notice to the other party.
- Termination of dynamic price plans. Subject to the Term, and if not defined otherwise in the ORDER DOCUMENTS, either party may terminate this Agreement with effect at the end of each 3 month period by giving at least ninety (30) days prior written notice to the other party or by terminating the contract via online processes.
- Termination for cause. Either party has the right to terminate this Agreement for cause if the other party defaults on any of its material obligations, provided that the non-defaulting party has warned the other party in writing of the material breach and provided that the defaulting party has failed to remedy such breach within thirty (30) calendar days after receiving such notice. If we are in material breach of this Agreement with failure to remedy and you terminate this Agreement for cause, we shall refund your unused advance payments for future use of the CLOUD SERVICE within thirty (30) days. Our right to terminate for cause is also governed by Section 43 below, in the event that your account has been suspended as described therein.
- Termination due to our modifications. You have the right to terminate this Agreement by giving us prior written notice if you do not agree to our modifications of the CLOUD SERVICE through NEW VERSIONS as per section 21. Your sole remedy for such termination shall be the refund of unused advance payments for future use of the CLOUD SERVICE (if any). If you do not agree to our modifications and you do not terminate as set out above, all NEW VERSIONS of the CLOUD SERVICE are deemed accepted.
- Temporary suspension and termination. We may temporarily suspend or limit your rights to use the CLOUD SERVICE if in our reasonable view you or your use of the CLOUD SERVICE: (a) poses a substantial security risk for the CLOUD SERVICE or any third party; (b) results in substantial performance or other degradations of the CLOUD SERVICE caused by your overuse or wrong use of the CLOUD SERVICE; (c) may subject us or a third party to material liability; (d) may be fraudulent or violate applicable law; (e) you are in breach of this Agreement; (f) you are subject of any bankruptcy, liquidation, dissolution or similar proceeding; or (g) you are more than sixty (60) days in delay of payment. During the temporary suspension, you remain responsible for fees and charges that you have incurred during the period of suspension unless such suspension proves unjustified in which case your sole remedies shall be a pro-rated credit of payments made for the purchased CLOUD SERVICE during the period of temporary suspension. We will give you at least five (5) business days prior written notice before we suspend, except where we reasonably believe we need to suspend immediately in order to mitigate or limit damages. If we have to suspend the CLOUD SERVICE for you more than twice in a calendar year and the suspensions are justified, then we may terminate this Agreement for cause within ten (10) days after the second suspension begun.
- Modifications of this Agreement. We may modify this Agreement at any time by giving you at least ninety (90) days prior written notice. After expiry of this notice period, you are automatically bound by the terms of the modified Agreement if you continue to use the CLOUD SERVICE thereafter. If you do not agree with the modifications, you must terminate this Agreement within thirty (30) days of receiving our written notice. Excluded from the foregoing are: (a) changes to prices which shall become effective solely upon renewal (including automatic renewal) of existing subscriptions or new orders; and (b) changes required by law which become effective immediately by when we notify you about such changes if no other effective date was provided in such notification. Your sole remedy for such termination shall be the refund of unused advance payments for future use of the CLOUD SERVICE (if any).
- Any terms of this Agreement which by their nature should survive termination or expiry, in particular sections 18, 24, 25, 27, 30, 31 and 32, shall survive the termination or expiry of this Agreement for any reason.
- Advance payment (fixed price plans). Unless otherwise defined in the ORDER DOCUMENTS, payment for the CLOUD SERVICE is due by when the Term begins with advance payments for the Term. All fees will be settled in the currency specified in the ORDER DOCUMENTS. Payment of undisputed invoices will be due and payable thirty (30) days from the date of invoice.
- Governing Law/Jurisdiction. This Agreement shall be governed by, enforced by, and interpreted in all respects by laws in force in Austria. The place of jurisdiction shall be the competent courts of Linz. Any disputes will be settled in either English or German language at the choice of the claiming party. In any event, this Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly ex
- If any part of this Agreement is held unenforceable, the rest remains in full force and effect.
- Any notices under this Agreement shall be in writing, sent via email or certified mail or courier where sent internationally to the business or email addresses as provided in the ORDER DOCUMENTS with a copy sent via email to firstname.lastname@example.org. Notices shall be deemed effective on the earlier of the date of receipt or the fourth day after being deposited in the mail or given to a courier for dispatch.
- No Agency. You and we are independent contractors. This Agreement does not create an agency, partnership, or joint venture.
- Complete Agreement. This Agreement and all referenced Exhibits, Documents and Proposals are the entire Agreement concerning its subject matter and supersede any prior or concurrent communications and Agreements including any non-disclosure or confidentiality Agreements entered into between the parties.
- In the event of any inconsistency between the ORDER DOCUMENTS with the terms of this Agreement (and any amendments to the terms of this Agreement) the following shall apply: Amendments shall prevail if mutually agreed between you and us in writing. In the event of any inconsistency between the terms of this Agreement and the ORDER DOCUMENTS, the terms of the Order Document shall prevail.
- Failure to enforce any provision of this Agreement will not constitute a waiver.
- Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement that is due to any cause beyond the reasonable control of such party, including, without limiting the generality of the foregoing, fire, explosion, earthquake, storm, flood or other weather, unavailability of necessary utilities or raw materials, including phone, electricity, Internet or other communications systems, strike (excluding your or our employees), riot, war, insurrection, terrorism, export control regulations, ordinance, or instructions of Government or other public authorities, or judgment or decree of a court of competent jurisdiction. If the force majeure continues for more than 14 days, either party may terminate this Agreement without further liability to the other.
- Compliance with Laws. We will comply with all laws applicable to our provision of the CLOUD SERVICE excluding any laws applicable to you or your industry that are not generally applicable to comparable CLOUD SERVICE providers. You will comply with all laws applicable to your use of the CLOUD SERVICE and CUSTOMER DATA.
- The pronouns used herein shall include, where appropriate, either gender or both, singular and plural. The various captions and section headings contained in this Agreement are inserted only as a matter of convenience and in no way define, limit or extend the scope or intent of any of the provisions of this Agreement.
Relevant Annexes depending on the services ordered: