This Agreement is effective as of October 1st 2019.
- the tools (the “Service”) we provide you (the “Customer”); and
- other ByteCode SE’s hosted pages where the Service is provided.
- The terms “we” and “our” as used in this Agreement refer to the editor of the QRcodeLab™ web application service, ByteCode Software Engineering sàrl, hereafter mentioned as “ByteCode SE”.
- The term “Aggregate/Anonymous Data” means data generated by aggregating Customer Data with other data so that results are non-personally identifiable with respect to Customer; and learnings, logs, and data regarding use of the Service.
- The term “Authorized Users” means Customer’s employees and contractors who are acting for Customer’s benefit and on its behalf.
- The term “Content” means text, images, videos or any other content that Customer selects for use with our Service.
- The term “Customer Data” means Content and Submitted Data.
- The term “Documentation” means the end user technical documentation created by ByteCode SE and provided with our Sites, currently available at https://www.qrcodelab.com/pages/howto.
- The term “Order Form” means any ordering documentation or online sign-up or subscription to the Service that references this Agreement.
- The term “Regulated Data” means:
- any personally identifiable information (other than personal information about Authorized Users); or
- any patient, medical, or other protected or regulated health information; or
- any government IDs, financial information (including bank account or payment card numbers), or any other information subject to regulation or protection under specific laws or regulations.
- The term “Reseller Provider” means the online reseller service provider in charge of issuing Order Forms, online payment facilities, payment recovery and tax collection.
- The term “Scope of Use” means the usage limits or other scope of use descriptions for the Service included in the applicable Order Form (including descriptions of packages and features) or Documentation.
- The term “Sites” means Website, Service and ByteCode SE’s hosted pages.
- The term “Submitted Data” means data uploaded, inputted or otherwise submitted by Customer to the Service, including Third-Party Content.
- The term “Subscription Term” means the initial term for the subscription to the Service, as specified on Customer’s Order Form(s), and each subsequent renewal term (if any).
- The term “Third-Party Content” means content, data or other materials that Customer provides to the Service from its own third-party data providers, including through Add-Ons used by Customer.
Other terms are defined in other Sections of this Agreement.
3 Account registration
4 Use Rights
4.1 Limited License
Subject to all the terms and conditions of this Agreement, ByteCode SE grants Customer a worldwide, non-exclusive, non-transferable, non-sublicensable, revocable right and license during the applicable Subscription Term to access and use the Service designated on Customer’s Order Form (including without limitation any applicable Service-Specific Terms) in order for you to insert and edit two-dimensional barcodes over raster images and retrieve the resulting images, solely for Customer’s internal business purposes and strictly in accordance with our Legal Terms.
4.2 Use by Others
Customer may permit its Authorized Users to use the Service, provided their use is for Customer’s benefit only and remains in compliance with this Agreement. Customer will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions of this Agreement. Use by all Authorized Users in aggregate will count towards applicable Scope of Use restrictions.
4.3 General Restrictions
Customer must not (and must not allow any third party to):
- rent, lease, copy, transfer, resell, sublicense, time-share, or otherwise provide access to the Service to a third party;
- incorporate the Service (or any portion of it) with, or use it with or to provide, any site, product, or service, other than our Sites;
- retrieve, reuse, modify or create a derivative work of the Service or any portion of it;
- reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats, or non-public APIs to any Service, except to the extent expressly permitted by applicable law and then only with advance notice to ByteCode SE;
- break or circumvent any security measures, rate limits, or usage tracking (such as event tracking) of the Service, or configure the Service (or any component thereof) to avoid sending events or to otherwise avoid incurring fees;
- distribute any portion of the Service or any portion of the Code;
- access the Service for the purpose of building a competitive product or service or copying its features or user interface;
- use the Service for purposes of product evaluation, benchmarking, or other comparative analysis intended for publication without ByteCode SE’s prior written consent;
- remove or obscure any proprietary or other notices contained in the Service.
4.4 Free Access Subscriptions
ByteCode SE may provide Customer with a Service for free on a trial basis (a “Free Access Subscriptions”) or with “alpha”, “beta”, or other early-stage Service, Code, integrations, or features (“Beta Releases”), which are optional for Customer to use.
This Section apply to any Free Access Subscriptions or Beta Releases and supersedes any contrary provision in this Agreement. ByteCode SE may use good faith efforts in its discretion to assist Customer with Free Access Subscriptions or Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in this Agreement, CUSTOMER AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS, AND OTHER PROBLEMS FOR WHICH ByteCode SE WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF BETA RELEASES ARE AT CUSTOMER’S SOLE RISK. ByteCode SE makes no promises that future versions of Beta Releases will be released or will be available under the same commercial or other terms. ByteCode SE may terminate Customer’s right to use any Free Access Subscriptions or Beta Releases at any time for any reason or no reason in ByteCode SE’s sole discretion, without liability.
5 Copyrights and Trademarks
Unless otherwise noted, all materials including without limitation, logos, brand names, images, designs, photographs, video clips and written and other materials that appear as part of our Sites are copyrights, trademarks, service marks, trade dress and/or other intellectual property whether registered or unregistered (“Intellectual Property”) owned, controlled or licensed by ByteCode SE. Our Sites as a whole are protected by copyright and trade dress. Nothing on our Sites should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Intellectual Property displayed or used on our Sites, without the prior written permission of the Intellectual Property owner. ByteCode SE aggressively enforces its intellectual property rights to the fullest extent of the law. The names and logos of ByteCode SE, may not be used in any way, including in advertising or publicity pertaining to distribution of materials on our Sites, without prior, written permission from ByteCode SE. ByteCode SE prohibits use of any logo of ByteCode SE or any of its affiliates as part of a link to or from any Sites unless ByteCode SE approves such link in advance and in writing. Fair use of ByteCode SE’s Intellectual Property requires proper acknowledgment. Other product and company names mentioned in our Sites may be the Intellectual Property of their respective owners.
6 Links to Third-Party Websites
Our Service may contain links to websites owned or operated by parties other than ByteCode SE. Such links are provided for your reference only. ByteCode SE does not monitor or control outside websites and is not responsible for their content. ByteCode SE’s inclusion of links to an outside website does not imply any endorsement of the material on our Sites or, unless expressly disclosed otherwise, any sponsorship, affiliation or association with its owner, operator or sponsor, nor does ByteCode SE’s inclusion of the links imply that ByteCode SE is authorized to use any trade name, trademark, logo, legal or official seal, or copyrighted symbol that may be reflected in the linked website.
7 Content Disclaimer
Postings on our Sites are made at such times as ByteCode SE determines in its discretion. You should not assume that the information contained on our Sites has been updated or otherwise contains current information. ByteCode SE does not review past postings to determine whether they remain accurate and information contained in such postings may have been superseded. THE INFORMATION AND MATERIALS IN OUR SITES ARE PROVIDED FOR YOUR REVIEW IN ACCORDANCE WITH THE NOTICES, TERMS AND CONDITIONS SET FORTH HEREIN. THESE MATERIALS ARE NOT GUARANTEED OR REPRESENTED TO BE COMPLETE, CORRECT OR UP TO DATE. THESE MATERIALS MAY BE CHANGED FROM TIME TO TIME WITHOUT NOTICE.
8 Customer Data
8.1 Rights in Customer Data.
As between the parties, Customer retains all right, title, and interest (including any intellectual property rights) in and to the Customer Data, and all content contained within them.
8.2 Aggregate/Anonymous Data
Customer agrees that ByteCode SE have the right to generate Aggregate/Anonymous Data and that Aggregate/Anonymous Data is ByteCode SE Technology, which we may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve ByteCode SE’s products and services and to create and distribute reports and other materials). ByteCode SE will only disclose Aggregate/Anonymous Data externally in a de-identified (anonymous) form that does not identify Customer and that is stripped of all persistent identifiers. Customer is not responsible for ByteCode SE’s use of Aggregate/Anonymous Data.
ByteCode SE agrees to maintain commercially reasonable technical and organizational measures designed to secure its systems from unauthorized disclosure and modification, including:
- storing Customer Data on servers located in physically secured locations; and
- using firewalls, access controls, and similar security technology designed to protect Customer Data from unauthorized disclosure and modification.
ByteCode SE does not provide an archiving service.
9 Customer Obligations
Customer agrees to:
- use the Service in compliance with our then-current Acceptable Use Policy (available at https://www.qrcodelab.com/pages/acceptable-use-policy);
- not submit, or use any Regulated Data to or with the Service;
- comply with any third-party terms applicable to any Customer Apps (such as app store terms), and to any Third-Party Products used in connection with the Service.
Customer represents and warrants that the use of Customer Data will not violate any third-party rights, including intellectual property, privacy and publicity rights. If Customer receives any take down requests or infringement notices related to Customer Data or its use of Third-Party Products, it must promptly:
- stop using the related item with the Service;
- notify ByteCode SE.
If ByteCode SE receives any take down requests or infringement notices related to Customer Data or Customer’s use of Third-Party Products, ByteCode SE may respond in accordance with its policies, and will notify and consult with the Customer on next steps.
10 Fees and Payment
Our order process is conducted by our Reseller Provider.
Customer agrees to pay all fees in the currency and payment period specified in the applicable Order Form. Fees are exclusive of all taxes, and Customer must pay any applicable sales, use, VAT, GST, excise, withholding, or similar taxes or levies, whether domestic or foreign, other than taxes based on the income of ByteCode SE. Customer will make tax payments to our Reseller Provider to the extent amounts that are appropriately included in Order Form.
11 Term and Termination
This Agreement is effective until all Subscription Terms for the Service have expired or are terminated as expressly permitted in this Agreement.
11.1 Subscription Term and Renewals
By executing an Order Form for purchase of a Service, Customer is agreeing to pay applicable fees for the entire Subscription Term. Customer cannot cancel or terminate a Subscription Term except as expressly permitted by Section 11.3 Termination for Cause or a Service-Specific Term. If no subscription start date is specified on the applicable Order Form, the subscription starts when Customer first obtains access to the Service.
Each Subscription Term will automatically renew for an additional successive period unless:
- otherwise stated on the applicable Order Form; or
- Customer opt for a Free Access Subscription; or
- Customer opt to delete his account before the end of the then-current Subscription Term.
Pricing for any Subscription Term renewal, new Order Form, or Order Form changes will be at ByteCode SE’s then-applicable rates.
11.2 Suspension of Service
ByteCode SE may suspend Customer’s access to the Service if:
- Customer’s account is overdue;
- Customer has exceeded its Scope of Use limits.
ByteCode SE may also suspend Customer’s access to the Service and remove Customer Data if it determines that:
- Customer has breached any terms of the following sections: 4 Use Rights, or 9 Customer Obligations; or
- suspension is necessary to prevent harm or liability to other customers or third parties, or to preserve the security, stability, availability or integrity of the Service.
ByteCode SE will have no liability for taking action as permitted above. For the avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period under this current Section.
However, unless this Agreement has been terminated, ByteCode SE will cooperate with Customer to promptly restore access to the Service once it verifies that Customer has resolved the condition(s) requiring suspension.
11.3 Termination for Cause
Either party may terminate this Agreement, including any related Order Form, if the other party:
- fails to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after written notice detailing the breach; or
- ceases operation without a successor; or
- if permitted by applicable law, seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any of these proceedings are instituted against that party (and not dismissed within sixty (60) days thereafter).
ByteCode SE may also terminate this Agreement or any related Order Forms immediately:
- if Customer breaches any terms of the following sections: 4 Use Rights, or 9 Customer Obligations; or
- for repeated violations of this Agreement.
11.4 Effect of Termination
Upon any expiration or termination of this Agreement or an Order Form:
- Customer’s license rights terminate and it must promptly:
- stop use of the Service (including any related ByteCode SE Technology);
- delete any and all copies of the Code.
- Customer’s right to access any Customer Data in the Service will cease immediately and ByteCode SE may delete the Customer Data at any time after 24 hours from the date of termination.
If ByteCode SE terminates this Agreement for cause (as provided in Section “11.3 Termination for Cause”), any payments for the remaining portion of the Subscription Term is due and must be paid immediately by Customer. Except where this Agreement specifies an exclusive remedy, all remedies under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.
The following Sections survive any expiration or termination of this Agreement:
- 2 Definitions;
- 3 Account registration;
- 4.3 General Restrictions;
- 4.4 Free Access Subscriptions;
- 8.1 Rights in Customer Data.;
- 8.2 Aggregate/Anonymous Data;
- 10 Fees and Payment;
- 11 Term and Termination;
- 14 Indemnification;
- 15 Disclaimers;
- 16 Limitations of Liability;
- 17 General.
12 Confidential Information
12.1 Confidentiality Obligation
Each party (as the receiving party) must:
- hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by this Agreement; and
- only use the other party’s Confidential Information to fulfill its obligations and exercise its rights under this Agreement.
Each party may share the other party’s Confidential Information with its, and its Affiliates’, employees, agents or contractors having a legitimate need to know (which, for ByteCode SE, includes the subcontractors referenced in section 17.3 Subcontractors), provided that the party remains responsible for any recipient’s compliance with the terms of this section 13 ByteCode SE Technology and that these recipients are bound to confidentiality obligations no less protective than this Section.
The parties acknowledge that disclosing Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so on breach of this Section, each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.
13 ByteCode SE Technology
13.1 Ownership and Updates
This is a subscription agreement for access to and use of the Service. Customer acknowledges that it is obtaining only a limited right to use the Service and that irrespective of any use of the words “purchase”, “sale” or similar terms, no ownership rights are transferred to Customer under this Agreement. Customer agrees that ByteCode SE retain all rights, title and interest (including all intellectual property rights) in and to all ByteCode SE Technology (which is deemed ByteCode SE’s Confidential Information) and reserves any licenses not specifically granted in this Agreement. Other than the Code, the Service is offered as an online, hosted product. Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any ByteCode SE Service and that ByteCode SE at its option may make updates, bug fixes, modifications or improvements to the Service from time-to-time.
If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to ByteCode SE (collectively, “Feedback”), Customer hereby grants ByteCode SE a worldwide, perpetual, non-revocable, sub-licensable, royalty-free right and license to use, copy, disclose, license, distribute, and exploit any Feedback in any format and in any manner without any obligation, payment, or restriction based on intellectual property rights or otherwise. ByteCode SE will not identify Customer as the source of the Feedback. Nothing in this Agreement limits ByteCode SE’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
Customer agrees to defend, indemnify and hold ByteCode SE harmless from and against any and all claims, liabilities, damages, costs and expenses, including attorneys’ fees, arising from or related to:
- your use of our Sites;
- Customer Data;
- or a breach or alleged breach of section 9 Customer Obligations.
Customer must not settle any claim without ByteCode SE’s prior written consent if the settlement would require ByteCode SE to admit fault, pay amounts that Customer must pay under this Agreement, or take or refrain from taking any action. ByteCode SE may participate in a claim through counsel of its own choosing at its own expense and Customer and ByteCode SE will reasonably cooperate on the defense.
OUR SITES ARE OPERATED BY ByteCode SE ON AN “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, ByteCode SE SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT FOR YOUR USE OF OUR SITES, AND ANY SERVICES YOU PURCHASE THROUGH IT. ByteCode SE MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT ByteCode SE TECHNOLOGY WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT CUSTOMER DATA WILL BE ACCURATE, COMPLETE, OR PRESERVED WITHOUT LOSS, OR THAT ByteCode SE TECHNOLOGY WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE. ByteCode SE DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. ByteCode SE WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CUSTOMER PROPERTIES, THIRD-PARTY PRODUCTS, THIRD-PARTY CONTENT, OR NON-ByteCode SE SERVICES (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR REGULATED DATA RECEIVED FROM CUSTOMER IN BREACH OF THIS AGREEMENT, FOR THE COLLECTION, USE AND DISCLOSURE OF CUSTOMER DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON ByteCode SE TECHNOLOGY OR ByteCode SE’S RELATED SERVICES (INCLUDING CHANGES TO CUSTOMER PROPERTIES). THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
16 Limitations of Liability
16.1 Liability Cap
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ByteCode SE SHALL NOT HAVE ANY LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF OUR SITES, FOR SERVICES SOLD THROUGH OUR SITES, FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, FOR YOUR ACTION OR INACTION IN CONNECTION WITH OUR SITES, FOR ANY DAMAGE TO YOUR COMPUTER OR DATA OR ANY OTHER DAMAGE YOU MAY INCUR IN CONNECTION WITH OUR SITES. IN NO EVENT SHALL EITHER ByteCode SE OR ITS SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF OUR SITES, AND SERVICES PURCHASED THROUGH OUR SITES, THE DELAY OR INABILITY TO USE OUR SITES, OR OTHERWISE ARISING IN CONNECTION WITH OUR SITES OR RELATED SERVICES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF ANY SUCH DAMAGES. IN NO EVENT SHALL ByteCode SE’s LIABILITY FOR ANY DAMAGE CLAIM EXCEED THE AMOUNT PAID BY THE CUSTOMER TO ByteCode SE FOR THE TRANSACTION GIVING RISE TO SUCH DAMAGE CLAIM IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES, ByteCode SE’S TOTAL LIABILITY WILL NOT EXCEED IN AGGREGATE ONE U.S. DOLLARS ($1 US). WITHOUT LIMITING THE FOREGOING, ByteCode SE DO NOT REPRESENT OR WARRANT THAT THE INFORMATION ON THE WEBITE IS ACCURATE, COMPLETE, RELIABLE, USEFUL, TIMELY OR CURRENT OR THAT OUR SITES WILL OPERATE WITHOUT INTERRUPTION OR ERROR.
NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 16 LIMITATIONS OF LIABILITY WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
16.3 Failure of Essential Purpose
EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 16 LIMITATIONS OF LIABILITY IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY ByteCode SE TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that ByteCode SE may assign this Agreement without consent to an Affiliate or in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 17 GENERAL will be void.
Any notice or communication under this Agreement must be in writing. Customer must send any notices under this Agreement (including breach notices) to ByteCode SE, in English, through the contact form available in our Service, and include “Attn. Legal Department” in the subject line. ByteCode SE may send notices to the email addresses on Customer’s account. ByteCode SE may also provide operational notices regarding the ByteCode SE Service or other business-related notices through conspicuous posting of the notice on our Sites. Each party consents to receiving electronic notices. ByteCode SE is not responsible for any automatic filtering Customer or its network provider may apply to email notifications.
ByteCode SE may use subcontractors and permit them to exercise the rights granted to ByteCode SE in order to provide the Service and related services under this Agreement. These subcontractors may include, for example, ByteCode SE’s hosted service, Reseller and CDN providers. However, subject to all terms and conditions of this Agreement, ByteCode SE will remain responsible for:
- compliance of its subcontractors with the terms of this Agreement; and
- the overall performance of the Services if and as required under this Agreement.
Nothing in this Agreement prevents ByteCode SE from disclosing Customer Data to the extent required by law, subpoenas, or court orders, but ByteCode SE will use commercially reasonable efforts to notify Customer where permitted to do so.
17.5 Independent Contractors
The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
17.6 Force Majeure
Neither party will be liable for any delay or failure to perform its obligation under this Agreement, except payment obligations, if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.
Customer is responsible for obtaining any required export or import authorizations for use of the ByteCode SE Services. Customer represents and warrants that it, its Affiliates, and its Authorized Users are not on any Swiss or U.S. Government list of prohibited or restricted parties or located in (or a national of) a country subject to a Swiss or U.S. Government embargo or that has been designated by the Swiss or U.S. Government as a “terrorist supporting” country. Customer must not access or use the ByteCode SE Service in violation of any Swiss or U.S. Governement export embargo, prohibition or restriction.
17.8 Amendments; Waivers
Any modification or amendment to this Agreement must be made in writing and executed by an authorized representative of each party. However, if ByteCode SE modifies the Agreement or any applicable Service-Specific Terms during Customer’s Subscription Term, the modified version will take effect upon Customer’s next Subscription Term renewal. In addition:
- if ByteCode SE launches new products or optional features that require opt-in acceptance of new terms, those terms will apply upon Customer’s acceptance or use;
- changes to any terms will take effect immediately for Free Access Subscriptions; and
ByteCode SE’s Documentation is available online and constantly being developed and improved, and as a result, during a Subscription Term ByteCode SE may update the Documentation to reflect best practice with the Service, provided that these changes do not substantially diminish Customer’s rights or create substantial Customer obligations. In the event of any conflict between this Agreement and any Order Form, this Agreement will take precedence unless otherwise expressly provided. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by an authorized representative of the waiving party.
If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.
17.10 No Third-Party Rights
Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Customer acknowledges that each Order Form only permits use by and for the legal entity or entities identified in the Order Form(s) as the Customer, and not any Customer Affiliates.
17.11 Entire Agreement
This Agreement represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to ByteCode SE Technology or any other subject matter covered by this Agreement. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. Any terms provided by Customer (including as part of any purchase order or other business form used by Customer) are for administrative purposes only, and have no legal effect.
17.12 Governing Law and Jurisdiction
This Agreement is governed by the laws of Switzerland and the parties submit to the exclusive jurisdiction and venue of courts located in Lausanne, Switzerland.