This EVALINK Agreement is entered into by and between SITASYS AG, a Swiss société anonyme, with its principal place of business at Industriestrasse 6 4513 Langendorf SO (“Sitasys”), and the entity you represent (“Customer”). This Agreement takes effect when you click on “I Accept” button or check the box presented with these terms (the “Effective Date”). You represent to Sitasys that you have legal authority to bind the Customer and to enter in this EVALINK Agreement for the Customer. You will identify the Customer in the appropriate field of the EVALINK Account you created for Customer’s use of the Services.
1. Use of the Services
1.1 Description of the Services
Customer may access and use the Services in accordance with this Agreement. The Services are set forth in the Services Description. Sitasys will provide at least twelve (12) months prior Notice to Customer if Sitasys decides to discontinue a Service, or a material functionality of the Services, that it makes generally available to its customers and that Customer is using. Sitasys will not be obligated to provide the Notice under this Section “Description of the Services” if the Notice period (a) would pose a security or intellectual property issue to Sitasys or the Services, or (b) would cause Sitasys or its Customers to violate a binding regulation, standard or a governmental or administrative authority’s request. Where Sitasys is excused from providing Notice under this Section “Description of the Services”, Sitasys will use commercially reasonable efforts to provide as much advance Notice as is reasonably practicable under the circumstances (which Customer acknowledges may be no prior notice).
1.2 Elements
Customer acknowledges that access and use of the Services require use of different Elements. Customer may also decide to use, in relation with the Services, additional Elements, including Third-Party Elements, that are not necessary for use of the Services. Elements are not part of the Services and are not governed by this Agreement. Customer is responsible (i) for the selection, set up, maintenance, use and payment of the Elements and (ii) to verify that the Elements are and remain compatible with the Services. Sitasys will not be liable for (i) any failure of the Services or damage that is arising from or related to the Elements or for (ii) the connection of the Services to the Elements or the compatibility of the Services with the Elements.
1.3 EVALINK Account
To access and use the Services, Customer will create an EVALINK Account on EVALINK Site. Customer will only create one EVALINK Account and will access and use the Services via its EVALINK Account.
1.4 End Users
Via its EVALINK Account, Customer may elect to (i) use the Services to provide Customer’s services to End Users or to (ii) enable End Users to access or use the Services or Customer Content. Sitasys will have no relationship with End Users. Customer will enter into a contract directly with its End Users and Customer will be responsible for End Users’ access and use of the Services and Customer Content. Sitasys will not provide any training or support Services to End Users.
1.5 Subcontractors
Sitasys may delegate to a subcontractor a portion of its obligations to provide the Services to Customer under this Agreement (the “Subcontractor”). Sitasys will (a) impose appropriate contractual obligations upon its Subcontractors, and (b) be responsible if the acts or omissions of its Subcontractors cause Sitasys to breach any of its obligations under this Agreement. The use of Subcontractors will not release Sitasys from any of its obligations under this Agreement.
1.6 Service Level Agreement
Sitasys will perform the Services in accordance with the service levels as set forth in the Service Level Agreement. Sitasys will provide sixty (60) days’ prior Notice to Customer before materially reducing the benefits offered to Customer under the Service Level Agreement.
1.7 Training, Support, Professional Services
The Services do not include training, support, or professional services, except as expressly set in the Services Description. The support or training Services may be provided by Sitasys directly or by a partner appointed by Sitasys. The partner will provide the training or support Services as a Subcontractor and Sitasys will remain responsible for the support or training Services provided by the partner. Customer may purchase additional training, support and/or professional services, at additional costs, under a separate agreement entered by Customer with Sitasys or one of Sitasys’ partners.
2. Security
Sitasys will implement reasonable and appropriate security measures, including against accidental or unlawful loss, access, or disclosure of Customer Content, as described in the Security Policy. Sitasys will Notify the Customer at least when Sitasys modifies materially the Security Policy. If Customer’s access or use of the Services poses a security risk to the function of the Services, to Sitasys or to a third-party, Sitasys may suspend Customer’s right to access or use the Services providing a prior reasonable Notice except when immediate suspension is necessary to limit and/or contain the security risk. Upon resolution of the security risk, Sitasys will restore full access or use of the Services. Sitasys will not charge Fees for the suspended Services.
Sitasys may only access, use or disclose Customer Content when, and to the extent, necessary to maintain or provide the Services, or as necessary to comply with the law or a binding order of a governmental or administrative body. When disclosure of Customer Content is necessary to comply with the law or a binding order of a governmental or administrative body, Sitasys will disclose Customer Content only to the extent compelled by law to do so and provided Sitasys gives Customer prior notice of the compelled disclosure (to the extent legally permitted) and, upon Customer’s reasonable request, commercially reasonable assistance, at the Customer’s cost, if the Customer wishes to contest the disclosure.
3. Customer Responsibilities
3.1 Log-In Credentials
Sitasys log-in credentials are for Customer’s internal use only and Customer will ensure their confidentiality. Customer may not sell, transfer or sublicense them to any other entity or person, except that Customer may disclose its log-in credentials only to its agents and subcontractors performing work on behalf of Customer and only if such disclosure is strictly required for the performance of the work. Except to the extent caused by Sitasys’ breach of this Agreement, as between the parties, Customer is responsible for all activities that occur under its EVALINK Accounts.
3.2 Proper Configuration
Customer has a variety of options to choose from when configuring the Services via its EVALINK Account. Customer is responsible for properly (i) configuring its EVALINK Account, the Services (ii) selecting and configuring Elements.
3.3 Unauthorized Use or Access Notification
Customer will Notify without delay Sitasys of any unauthorized access to or use of the Services by Customer, an End User or a third-party.
3.4 End Users
In the contract that Customer enters with End Users, Customer will impose on End Users at least the same obligations than Customer has under this EVALINK Agreement (including, but not limited to, the obligation to comply with applicable laws and regulations, standards and obligations under the Acceptable Use Policy). Customer is sole responsible for End Users’ access and use of Customer Content, the Services, the Elements and Customer’s services.
4. Fees and Payment
4.1 Service Fees
Customer will pay to Sitasys the Fees for the Services as set forth in the Financial Terms. If Sitasys increases a Service Fee, Sitasys will provide sixty (60) days’ prior Notice.
4.2 Invoicing and Payment
Sitasys will invoice Customer at the end of each month for all applicable Fees accrued for use of the Service during the month. Customer will pay Sitasys invoiced amounts within thirty (30) days of the date of the invoice. Customer will pay Fees without setoff or counterclaim and without deduction or withholding.
4.3 Overdue Amounts
Sitasys may charge Customer interest at the rate of 1.5% per month (or the highest rate permitted by law, whichever is less) on all late payments.
After providing Customer with a thirty (30) days’ prior Notice to pay an overdue amount, Sitasys may limit totally or partially Customer’s right to access or use the Services until full payment of the overdue amount is received by Sitasys.
This Section “Overdue Amounts” does not apply to amounts disputed in good faith by the Customer. Amounts disputed in good faith will be handled as per Section “Disputed Amounts”.
4.4 Disputed Amounts
If the Customer disputes in good faith an invoice (partially or totally), Customer will Notify Sitasys the basis for the dispute and any supporting documentation (together “Dispute Basis”) within thirty (30) days of the date of the invoice, and the parties will meet to resolve the dispute within twenty (20) days as from receipt of the Dispute Basis. If the parties fail to resolve the dispute after the last meeting within the twenty (20) days period, and if Sitasys considers reasonably that there is no valid basis to the dispute, then, after providing a ten (10) days’ Notice, Sitasys may partially or totally limit Customer’s right to access or use the Services until the dispute is resolved.
4.5 Taxes
As required under applicable law, each party will identify and pay all taxes and other governmental fees, charges, any penalties, interest, and other additions thereto, that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All Fees payable by Customer are exclusive of Indirect Taxes. Sitasys may charge and Customer will pay applicable Indirect Taxes that Sitasys is legally obligated or authorized to collect from Customer. Customer will provide such information to Sitasys as reasonably required to determine whether Sitasys is obligated to collect Indirect Taxes from Customer. Sitasys will not collect, and Customer will not pay, any Indirect Tax for which Customer furnishes Sitasys a properly completed exemption certificate or a direct payment permit certificate for which Sitasys may claim an available exemption from such Indirect Tax. All payments made by Customer to Sitasys under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, Customer will pay such additional amounts as are necessary so that the net amount received by Sitasys is equal to the amount then due and payable under this Agreement. Sitasys will provide Customer with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.
5. Confidentiality
5.1 Pre-existing NDA
If the parties have already entered into a nondisclosure agreement (“NDA”) prior to executing this Agreement and provided such NDA covers Confidential Information as defined in this Section below, then the NDA is incorporated by reference into this Agreement, except that the security provisions in Section “Security”, not the NDA, apply to Customer Content.
5.2 Definition of Confidential Information
“Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes, without limitation nonpublic information relating to the Disclosing Party’s technology, products, services, promotional and marketing activities, processes, data, customers, business plans and methods, finances and other business affairs, third-party information that the Disclosing Party is obligated to keep confidential, and the nature, content and existence of business discussions, negotiations between the parties, the terms and conditions of this Agreement. Nonpublic information regarding Customer’s services is, without limitation, Customer’s Confidential Information. The Services and related Sitasys’ Contents, are, without limitation, Sitasys Confidential Information.
5.3 Exclusions
Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third-party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
5.4 Protection of Confidential Information
The Receiving Party will (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees, contractors, Subcontractors, legal counsel and accountants who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Access by those employees, contractors, legal counsels, and accounts will be limited to the extent strictly required for the purposes consistent with this Agreement.
5.5 Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
5.6 Publicity
Neither Sitasys nor Customer will issue any press release or make any other public communication with respect to this Agreement or Customer’s use of the Services without the other party express written consent.
5.7 Duration
The obligations set forth in this Section Confidentiality will remain in full force during the term of this Agreement and for a period of two years after its termination for any reasons.
6. Privacy
Each party will comply with all privacy laws and regulations applicable to it and binding on it. When acting on behalf of Customer, Sitasys will process Customer’s personal data in accordance with the Data Processing Agreement accessible on EVALINK Site as it may be modified by Sitasys from time to time to address changes in privacy laws and regulations, in the Services (description or operational changes). Sitasys will provide a Notice to Customer of changes to the Data Processing Agreement. If Customer does not accept the modifications to the Data Processing Agreement, Customer will terminate the EVALINK Agreement in accordance with Section the “Termination” of the EVALINK Agreement.
Customer is responsible for determining what personal data it submits to the Services and for ensuring that personal data collection and the processing instructions are compliant with applicable privacy laws and regulations (including, but not limited to, as it may be applicable, inform data subjects and obtain their consents, rely on a valid legal basis for the processing, comply with sensitive data processing rules).
Processing of personal data for training and support Services, for billing and for contract and commercial relationship management, are described in the Sitasys’ policy on privacy and cookies that is available on EVALINK Site for information purposes and may be modified from time to time.
7. Proprietary Rights
7.1 Customer Content
Customer grants Sitasys, and its Subcontractors, a worldwide license to host, copy, encrypt, transmit and display Customer Content as strictly necessary for the provision of the Services to the Customer in accordance with this Agreement. Subject to this limited license right required for Sitasys to provide the Services to Customer, as between Customer and Sitasys, Customer (or Customer’s licensors) owns and will continue to own all right, title, and interest including all related intellectual property rights, in and to Customer Content. Except as provided in this Agreement, Sitasys obtains no rights under this Agreement from Customer (or Customer’s licensors) to Customer Content.
7.2 Services License
Sitasys owns and will continue to own all right, title and interest, including all related intellectual property rights, in and to the Services and all related technology and Contents including, but not limited to, application program interfaces (API)s, WSDLs, sample code, software libraries, command line tools, proofs of concept, templates. Subject to the terms of this Agreement, Sitasys grants Customer a limited, revocable, worldwide, non-exclusive, non-sublicensable, non-transferrable license to access and use the Services and related technology and Contents solely in accordance with this Agreement and solely for Customer’s permitted use of the Services. The Fees set forth in this Agreement include the price of the Services license. Some limited parts of the Services or Sitasys’ Content may be provided under a separate open-source license as identified in the Services Description or directly in the notice file or on the download page.
Neither Customer nor any End Users may use the Services or related Sitasys’ Content in any manner or for any purpose other than as expressly permitted by this Agreement. Neither Customer nor any End User may, or may attempt to (i) copy, modify, alter, repair, tamper with, create derivative works on the Services, any element, Content of the Services (including, but not limited to, features, functions, designs, code, architecture or graphs of the Services) or Sitasys’ Content, (ii) access or use the Services in a way intended to avoid incurring Fees, reduce Fees or exceeding usage limits or quotas, (iii) reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Services or in Sitasys’ Content, or (iv) resell or sublicense the Services.
7.3 Trademarks
Customer acknowledges that any trademarks, Services marks (including, but not limited to, “evalink”), Services or trade names, logos, and other designations of Sitasys that Sitasys may make available to Customer in connection with this Agreement are trademarks of Sitasys, and no license to Sitasys’ trademarks is granted herein. Customer will not misrepresent or embellish the relationship between Sitasys and Customer nor imply any relationship or affiliation between Sitasys and Customer except as expressly permitted by this Agreement or a separate written agreement between the parties.
7.4 Suggestions
Customer may elect, at its sole discretion, to provide to Sitasys an improvement suggestion to the Services. If Customer elects to provide such improvement suggestion, then Customer grants to Sitasys, for the maximum duration permitted by applicable law, a royalty-free, worldwide, transferable, sub-licensable, license to use or incorporate into the Services such improvement suggestion.
7.5 Aggregated Information
Sitasys may collect and aggregate data derived from the operation of the Services provided that the data is completely anonymized (“Aggregated Data”), and Sitasys may use such Aggregated Data for purposes of operating and monitoring performance of the Services, and improvement of the Services.
8. Third-Party Claims
8.1 Indemnification by Sitasys
Sitasys will defend Customer and its employees, officers, and directors against any third-party claim alleging that the Services infringe or misappropriate that third-party’s intellectual property rights and will pay the amount of any adverse final judgment or settlement. The obligations under this Section “Indemnification by Sitasys” will apply provided that Customer: (a) gives Sitasys Notice of the third-party claim promptly after receiving it (b) permits Sitasys to control the defense and settlement of the third-party claim; and (c) reasonably cooperates with Sitasys (at Sitasys’ expense) in the defense and settlement of the third-party claim. In no event will Sitasys agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other.
The obligations under this Section “Indemnification by Sitasys” will not apply to claims to the extent arising from (i) unauthorized modification of the Services or (ii) combinations of the Services with any other product, service, software, data, content, or method.
For any claim covered by this Section “Indemnification by Sitasys”, when Sitasys becomes aware of such third-party claim, or Sitasys reasonably believes such a claim will occur, Sitasys may, at its sole option: (i) obtain for Customer the right to continue use of the portion of the Services alleged to be infringing; (ii) replace or modify the alleged infringing portion of the Services so that it is no longer alleged to be infringing; or, (iii) terminate the alleged portion of the Services or the Agreement.
The remedies provided in this Section “Indemnification by Sitasys” are the sole and exclusive remedies for third-party claims of infringement or misappropriation of intellectual property rights by the Services.
8.2 Indemnification by Customer
Customer will defend Sitasys and its employees, officers, and directors against any third-party claim alleging that any Customer Content infringes or misappropriates such third-party’s intellectual property rights and will pay the amount of any adverse final judgment or settlement (“Third-Party IP Claim against Sitasys”). Customer will defend, indemnify and hold harmless Sitasys, and their respective employees, officers, directors, and representatives against any damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) arising from or related to any third-party claim that arises from (i) a breach of this Agreement by Customer or End Users, or (ii) from any dispute between Customer and any End User (“Third-Party Breach or Dispute Claim against Sitasys”) (Third-Party IP Claim against Sitasys and Third-Party Breach or Dispute Claim against Sitasys together the “Third-Party Claims against Sitasys”). The obligations under this Section “Indemnification by Customer” will apply provided that Sitasys: (a) gives Customer Notice of the Third-Party Claims against Sitasys promptly after receiving it, (b) permits Customer to control the defense and settlement of the Third-Party Claims against Sitasys; and (c) reasonably cooperates with Customer (at Customer’s expense) in the defense and settlement of the Third-Party Claims against Sitasys. In no event will Customer agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other.
The remedies provided in this Section “Indemnification by Customer” are the sole and exclusive remedies for Third-Party Claims against Sitasys.
9. Warranties and Warranty Disclaimers
9.1 By Sitasys
Sitasys represents and warrants to Customer that the Services will perform substantially in accordance with the Services Description.
Sitasys represents and warrants to Customer that it will perform this Agreement in compliance with all laws and regulations applicable to its performance of the Services.
9.2 By Customer
Customer warrants and guarantees that Customer Content and Customer’s access and use of the Services and the Elements will be and remain compliant with the Agreement and any applicable laws, regulations, and standards. Without prejudice to any Sitasys’ rights and remedies under this Agreement, if Customer Content, Customer’s access or use of the Services or the Elements violates the Agreement or any applicable laws, regulation or standards and poses a liability, costs, exposure or security risk to the function of the Services or to Sitasys or to a third-party, then Sitasys may suspend, totally or partially, Customer’s right to access or use the Service providing a prior reasonable Notice except when immediate suspension is necessary to limit, contain the risk. Upon resolution of the risk, Sitasys will restore full access and use of the Services. Sitasys will not charge Fees for the suspended Services access or use.
Customer acknowledges that to access and use the Services, Customer must be a professional alarm and security expert. Customer warrants and guarantees that Customer’s access and use of the Services and the Elements will be and remain, at all times, compliant with applicable security and alarm industry state of the art and best practices related to Customer’s access and use of the Services.
9.3 By Each Party
Each party represents and warrants to the other that it has full power and authority to enter into and perform this Agreement.
9.4 Warranty Disclaimers
EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 9.1 AND 9.3, AND EXCEPT TO THE EXTENT PROHIBITED BY LAW, SITASYS AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE SERVICES OR THE THIRD-PARTY ELEMENTS, AND DISCLAIM ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (A) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (B) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (C) THAT THE SERVICES OR THE THIRD-PARTY ELEMENTS WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, AND (D) THAT ANY ELEMENT OR CONTENT, INCLUDING, BUT NOT LIMITED TO, CUSTOMER CONTENT OR THIRD PARTY ELEMENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. THIS SECTION 9.4 DOES NOT LIMIT SITASYS' EXPRESS OBLIGATIONS UNDER THIS AGREEMENT.
10. Limitations of Liability
10.1 Liability Disclaimers
EXCEPT FOR BREACH OF SECTION “SERVICES LICENSE” OR SECTION “TRADEMARKS” OR FOR PAYMENT OBLIGATIONS ARISING UNDER SECTION “INDEMINIFICATION BY CUSTOMER” FOR THIRD-PARTY BREACH OR DISPUTE CLAIM AGAINST SITASYS, NEITHER SITASYS NOR CUSTOMER, NOR ANY OF LICENSORS, WILL BE LIABLE TO THE OTHER UNDER ANY CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, OR GOODWILL, PROFESSIONAL ACTIVITY, BUSINESS INTERUPTION OR DISRUPTION, THE LOSS OF CUSTOMER CONTENT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES.
10.2 Damages Cap
EXCEPT FOR (I) PAYMENT OBLIGATIONS ARISING UNDER SECTION “THIRD-PARTY CLAIMS” OR (II) BREACH OF SECTION “SERVICES LICENSE” OR SECTION “TRADEMARKS”, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER THE SECTION “FEES AND PAYMENT”.
11. Term
This Agreement commences on the Effective Date and will remain in effect until terminated pursuant to the terms of this Agreement.
12. Termination
12.1 Termination by Customer
Customer may terminate this Agreement for convenience, without having to provide any justification, by clicking on the box entitled “delete company” on the subscription page of Customer’s EVALINK Account. Termination will be effective upon clicking on the box entitled “delete company” and all Customer Content will be deleted within thirty (30) days as from effective termination date.
12.2 Termination by Sitasys
a) For Convenience. Sitasys may terminate this Agreement for convenience by providing Customer at least twelve (12) months’ Notice.
b) For Cause. To the extent permitted by applicable law, Sitasys may terminate this Agreement (a) upon Customer’s material breach of this Agreement that remains uncured for thirty (30) days following Notice of such breach; or (b) with fourteen (14) days’ Notice, in the event Customer becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.3 Effect of Termination
Upon the effective date of termination, Customer’s rights under this Agreement immediately terminate and Customer remains responsible for all Fees and charges Customer has incurred through the effective date of termination. All Customer Content and Customer’s EVALINK Account will be deleted within thirty (30) days as from effective termination date.
12.4 Survival
Those provisions that by their nature are intended to survive, including but not limited to provisions dealing with warranty, indemnity, liability, disclaimers, termination, confidentiality, payments and intellectual property, shall so survive.
13. Miscellaneous
13.1 Governing Law; Venue
This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the laws of Switzerland, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The courts located at Solothurn, Switzerland will have exclusive jurisdiction over any dispute relating to this Agreement, and each party consents to the exclusive jurisdiction of those courts. Notwithstanding the foregoing, any party may seek injunctive relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of such party’s, or any third-party’s intellectual property or other proprietary rights.
13.2 Entire Agreement
This Agreement is the entire agreement between Customer and Sitasys and supersedes all prior or contemporaneous proposals, responses to RFPs, RFIs, RFBs, questionnaires, commercial documents, presentations, slides, webpages, quotes, negotiations, discussions, communications, correspondence, representations, terms and conditions or agreements, whether written or oral, between the parties regarding its subject matter. In the event of a conflict between the terms of this agreement hereto and any document incorporated by reference to the Agreement, the terms contained in this agreement hereto will control, except when the conflicting term is included in the document incorporated by reference, to comply with applicable laws, regulations, or industry standards.
13.3 Modifications
Sitasys will provide a thirty (30) days prior Notice before materially modifying the agreement hereto. Sitasys may modify the EVALINK Agreement (including, any document incorporated by reference) by posting a revised version on the EVALINK Site. The modified terms of the EVALINK Agreement will become effective upon posting or, after the Notice period when an express prior Notification obligation is set forth in the Agreement. If the Customer does not consent to a modification of the EVALINK Agreement, then the Customer will terminate the EVALINK Agreement for convenience in accordance with Section “Termination”. It is Customer’s responsibility to check the EVALINK Site regularly for modifications to the EVALINK Agreement.
13.4 Assignment
Neither party may assign or otherwise transfer this Agreement or any of its rights or obligations hereunder without the other party’s prior written consent (not to be unreasonably withheld) except as provided in this Section “Assignment”. Either party may assign or transfer this Agreement in its entirety in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without the other party’s consent, provided the assignee has agreed to be bound by all of the terms of this Agreement and all fees owed to the other party are paid in full. Effective upon such assignment or transfer, the assignee/transferee is deemed substituted for the assignor/transferor as a party to this Agreement and the assignor/transferor is fully released from all of its obligations and duties to perform under this Agreement.
13.5 Severability
If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
13.6 Force Majeure
No party will be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond its reasonable control, including, but not limited to acts of God, pandemics, labor disputes, electrical or power outage, utilities or telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
13.7 Independent Contractors
The parties are independent contractors. No joint venture, partnership, employment, or agency relationship exists between Customer and Sitasys as a result of this Agreement. Neither Customer nor Sitasys is an agent of the other for any purpose or has the authority to bind the other.
13.8 Notice
a) Either party will provide Notice to the other party by sending an e-mail with acknowledgement of receipt and with a subject line entitled “NOTICE”. Both parties represent and warrant that the Notice email provided can receive and send acknowledgement of receipts and that the parties will not block them or refuse to send them.
b) Notices to Sitasys will be sent to notice@sitasys.com. Notices to Customer will be sent to the email provided by Customer in the EVALINK Account.
c) Notices provided by email will be effective when the party sends the email.
13.9 Language
All communications and Notices made or given pursuant to this Agreement must be in the English language.
13.10 No Waivers
All waivers by a party must be provided in a Notice to be effective. The failure by a party to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit such party’s right to enforce such provision at a later time.
14. Definitions
Defined terms used in this Agreement with initial letters capitalized have the meanings given below:
“Acceptable Use Policy” means the acceptable use policy, as may be modified by Sitasys from time to time, located on the EVALINK Site.
“Agreement” or “EVALINK Agreement” means the agreement hereto and incorporates by reference the Services Description, Service Level Agreement, Financial Terms, Acceptable Use Policy, Data Processing Agreement and Security Policy available on EVALINK Site.
“Content” means content, including, but not limited to, software (including machine images), data, text, audio, video, or images.
“Customer Content” means Content that Customer or any End User transfers to Sitasys for processing, storage or hosting by the Services in connection with Customer’s EVALINK Account.
“Customer’s services” means the services that (i) are provided directly to Customer’s clients or other End Users by Customer and that (ii) require access or use of the Services through Customer’s EVALINK Account.
“Data Processing Agreement” means the data processing agreement, as may be modified by Sitasys from time to time, located on the EVALINK Site.
“Elements” means elements that (i) are property of the Customer or made available to Customer by a third-party under a separate contract between the third-party and the Customer and (ii) may be necessary to use the Services. Elements include, but are not limited to, alarms objects (sensors, cameras…), transmitters, network to connect the alarms to the Services and to connect from the Services to the intervention teams or measures (when Customer elects to not register to the Sitasys Service that includes such Element), receivers (when Customer elects to not register to the Sitasys Service that includes such Element), Third-Party Elements. Evalink transmitters are governed by separate terms and conditions.
“End User” means any individual or entity that accesses or uses Customer Content, or the Services or Customer’s services via Customer’s EVALINK Account. The term “End User” may include, without limitation, Customer’s employees, affiliates, contractors, or Customer’s own clients when Customer enable them to access or use, via Customer’s EVALINK Account, the Services, Customer’s services or Customer Content.
“EVALINK Account” means the account that Customer creates on EVALINK Site to register to the Services and access and use it.
“EVALINK Site” means Sitasys website, as may be modified by Sitasys from time to time, available at evalink.io.
“Fee(s)” means the fee(s) as set forth in the Financial Terms.
“Financial Terms” means the financial terms, as may be modified by Sitasys from time to time, located on the EVALINK Site.
“Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, GST, excise taxes, sales and transactions taxes, and gross receipts tax.
“Marketplace” means the part of the EVALINK Site that allows third parties to make available Third-Party Elements to the Customer.
“Notice” (or “Notify”) means any notice provided (or to notify) in accordance with Section “Notice”.
“Section” means a section of the Agreement.
“Security Policy” means the security policy, as may be modified by Sitasys from time to time, located on the EVALINK Site.
“Service” means each of the Services made available by Sitasys for which Customer registers via the EVALINK Site and that is described in the Services Description. For sake of clarity, a Third-Party Element (including a Third-Party Element available on the Marketplace), is not a Service.
“Services” means all the services made available by Sitasys for which Customer registers via EVALINK Site and that are described in the Services Description. For sake of clarity, Services do not include Third-Party Elements.
“Services Description” means the description of the Services, as may be modified by Sitasys from time to time, located on the EVALINK Site.
“Service Level Agreement” means the service level agreement that Sitasys offers with respect to the Services, as may be modified by Sitasys from time to time, located on the EVALINK Site.
“Sitasys Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Sitasys that Sitasys may make available to Customer in connection with this Agreement.
“Third-Party Elements” means Elements provided to Customer by a third-party and that Customer elects to use in connection with the Services. Third-Party Elements are governed by the third-party’s terms and conditions. Third-Party Elements includes, but is not limited to, Contents and other elements made available on the Marketplace by third parties.