End User Agreement

End User Agreement - DGM-SDG

End User Agreement

User access to and usage of the DGOffice solution

Definitions

"Customer data"

“Customer data” means any information, materials and other subject matter that end user submits to, transmits or distributes through, receives from, or stores, using the product or website.

"Documentation"

“Documentation” means DGOFFICE’s user documentation as defined in the agreement below.

"End user"

“End user” means the customer under whose name DGOFFICE has provisioned the product.

"Product"

“Product” means the software functionality and services made available by DGOFFICE as an application service provider through a browser interface over the internet or as installable application distributed on CD-ROM or digital download.

"Website"

“Website” means DGOFFICE’s website(s) through which DGOFFICE makes the product available for customers in the territory, at the URL address identified by DGOFFICE for the territory.

1. Activation; Product Provider; Use Terms

a. Product provider

End user acknowledges and agrees that the product is being provided by DGOFFICE B.V. or its affiliate (individually and collectively, “DGOFFICE”), as an application service provider. DGOFFICE can choose to appoint a reseller and end user agreed in such case, reseller (and not DGOFFICE) is selling the product to end user. Accordingly, reseller, and not DGOFFICE, shall be solely responsible to end user for the products, the website and the operation and use thereof, notwithstanding any DGOFFICE branding on the website. End user shall contact reseller, and not DGOFFICE, with respect to the product and website, including obtaining any related support or assistance; report any problems, or the like.

b. Activation

To activate end user’s access to and use of the product and the website, end user must read and agree to this end user agreement, including all disclaimers and limitations of liability, and limitations on access to and use of the product and the website. The end user agreement shall govern all access to and use of the product and website. No activation shall be effective, however, until the account is actually provisioned by DGOFFICE. All information provided by end user to activate an account shall be accurate and complete.

c. DGOFFICE; Third party beneficiary

Notwithstanding anything to the contrary, including any terms or conditions and privacy policy posted on the website, DGOFFICE shall have no obligation, responsibility or liability to end user arising out of or related to the product, website, or the operation or use thereof, or any ancillary products or services provided by reseller. In particular, the only obligations and responsibility to end user regarding the products and website shall be those by reseller as expressly set forth in this end user agreement.

END USER AGREES THAT IT, AND ITS AFFILIATES AND USERS, SHALL NOT ASSERT OR BRING ANY CLAIM OR ACTION AGAINST DGOFFICE OR ITS AFFILIATES IN CONNECTION WITHTHE PRODUCT, THE WEB SITE, OR THE PERFORMANCE OR USE THEREOF, WHETHER BASED UPON THIS END USER AGREEMENT OR OTHERWISE, INCLUDING FOR ANY FAILURE OF THE PRODUCTS AND INCLUDING BASED UPON ANY ANCILLARY OR RELATED PRODUCTS OR SERVICES.

Notwithstanding the foregoing, DGOFFICE is and shall be a third party beneficiary of, with the power to enforce, this end user agreement (including without limitation any disclaimers and limitations of liability) against the end user. No terms or conditions in this end user agreement shall limit any remedies available to DGOFFICE.

d. Changes to end user agreement

This end user agreement may be updated at any time by providing an updated copy of the end user agreement to end user, which delivery may be by email or through the website. Continued access to and use of the product and website shall be subject to end user’s agreement to any such updated end user agreement. If end user does not agree to the updated end user agreement, end user shall notify reseller and shall not access or use the product or website further. For clarity, while updated end user agreement may be posted on the website, any indication of agreement by the end user on the website to such end user agreement shall form a contract between end user and reseller or DGOFFICE only, whichever is applicable. In case of a contract between end user and reseller, no contractual relationship shall be formed between DGOFFICE and end user, whether or not the terms and conditions purport to be an agreement with DGOFFICE.

2. Internal use only

All access to and use of the product and website shall be solely for the end user’s own internal business operations and not for the benefit or business of any other party. Without limiting the foregoing, end user shall not license, rent, sell, lease, transfer, assign, distribute, display, host, outsource, disclose, link to, mirror, frame, provide a service bureau using, or otherwise commercially exploit or make available to any party (other than end user’s authorized employees) the product, website or output from, or use or benefit of, the product.

3. Other use restrictions

End user (and all users under its account) shall use the product and website solely in the manner described in the user documentation, as the user documentation is updated from time to time.

a.

End user shall not (and shall not allow any third party to) copy, modify, create derivative works of, reverse engineer, reverse assemble, disassemble or decompile the product, website, or any part thereof, or otherwise attempt to discover or obtain any source code or other code in human perceivable form.

b.

End user shall comply with all applicable local, state, federal, national, international and foreign laws, treaties, regulations, conventions, and standards of each applicable jurisdiction and community in connection with the use of the product and website, including those related to privacy, electronic communications and anti-spam legislation. Neither the product nor website shall be accessed or used in a manner that is, or that aids or assists any purpose or activity that is, illegal; invades or infringes the privacy or other rights or expectations of any person; that may be considered offensive, abusive, inappropriate, threatening, harassing, libelous, slanderous, defamatory, intrusive, surreptitious, obscene or inconsistent with community standards; or that may otherwise damage DGOFFICE or its service providers’ business, services, reputation, or good will. DGOFFICE has the right to delete any customer data that violates this Section 3(b).

c.

End user shall access and use the product and website only through the graphical user interfaces that are expressly provided on the website and described in the user documentation.

d.

End user shall not upload, store, post, reproduce, submit, distribute or – transmit any information, software or other material or subject matter that is protected by copyright, trade secrets, or any other intellectual property or proprietary right (including rights of publicity and privacy) without first obtaining the authorization of the owner of such rights, including any rights , necessary for reseller and its service providers to provide, and end user to use, the products and website with respect to such subject matter.

e.

End user shall not indicate or imply that any communications or transmissions using the products or website are endorsed by DGOFFICE or its service providers.

4. User names and passwords

User names and passwords shall be used only for the benefit of end user. Contractors shall not use the product for their own benefit. End user shall be responsible for all use in violation of this end user agreement through its account or using any of its user names and passwords.

5. Related equipment and software

End user shall provide and obtain all equipment, software, and accounts, including communications infrastructure, necessary to establish a connection to the internet, and will further obtain access to the internet and pay any service fees associated with such access, if any; will agree to use software produced by other third parties, including, but not limited to, “browser” software that may support a data security protocol compatible with the protocol used by DGOFFICE. When end user wishes to use the data security protocol to access the product, end user agrees to use software that supports the Secure Socket Layer protocol or other protocols accepted by DGOFFICE and to follow logon procedures for product that support such protocols.

6. Rights of reseller and its providers

End user hereby grants, and shall grant, to DGOFFICE (and its service providers) the non-exclusive right and license to copy, record, transmit, maintain, store, display, view, print, adapt, and otherwise use all customer data, and to engage in such other activities, to the extent necessary to provide and operate the product and website for the benefit of end user (including disclosure and distribution of customer data as specified by end user and to DGOFFICE’s contractors and service providers). Without limiting the foregoing, end user agrees that DGOFFICE, and its contractors and service providers, are authorized to intercept and store communications and transmissions and customer data, and that changes to such communications and transmission may occur in order to conform and adapt the customer data to the technical requirements of connection networks or devices used in or by the product or website. Reseller and its services providers do not provide or obtain, or purport to provide or obtain, any such rights.

7. Product changes; discontinuance

DGOFFICE, reseller and its service providers have the right, from time to time in their sole discretion, without incurring any liability to end user (except for credits or refunds that reseller may be required to pay as expressly set forth in this end user agreement) to modify the design of, specifications for, or operation of, or suspend or terminate the availability of, the product and website. Without limiting the foregoing, DGOFFICE and its service providers shall have no obligation to continue the availability of the product or the website.

DGOFFICE AND ITS SERVICE PROVIDERS SHALL HAVE NO LIABILITY OR RESPONSIBILITY AS A RESULT OF ANY SUCH MODIFICATION, SUSPENSION, OR TERMINATION.

8. Ancillary products and services

DGOFFICE SHALL HAVE NO RESPONSIBILITY OR LIABILITY ARISING OUT OF OR RELATING TO ANY PRODUCTS OR SERVICES, OTHER THAN THE PRODUCT PROVIDED BY DGOFFICE AS AN APPLICATION SERVICE PROVIDER ON THE WEBSITE OR VIA CD-ROM.

9. Security

End user understands that all communications, transmissions, and submissions to, through, and from the product and website are transmitted through networks, equipment and facilities that are not owned or controlled by DGOFFICE or reseller and its service providers and that such communications, transmissions, and submissions may be accessed or intercepted by unauthorized parties. DGOFFICE intends to take such measures as it considers reasonably appropriate; for purposes of maintaining the security of only its own facilities used to provide the products and website. Provided that DGOFFICE takes such measures,

DGOFFICE SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY COMMUNICATIONS, TRANSMISSIONS, OR SUBMISSIONS WHICH ARE ALTERED, INTERCEPTED, ACCESSED OR STORED WITHOUT AUTHORIZATION OR ANY OTHER BREACHES OF SECURITY.

None of DGOFFICE and its services providers shall be required to authenticate the identity of any user. End user shall notify reseller immediately of any unauthorized use of the website or product; loss or theft of any user name or password; or any other security failure of which end user is aware.

10. Product Interruptions

The product (including use of the website) may become unavailable and inaccessible at any time without notice, both for reasons controlled by DGOFFICE, reseller and its services providers and for reasons not controlled or determined by DGOFFICE, reseller or its service providers. In the event of planned unavailability, DGOFFICE or reseller will attempt in good faith to provide end user with at least 3 days’ notice of the unavailability. Planned outages may also be announced email and on the website. Subject to the foregoing,

DGOFFICE, RESELLER AND ITS SERVICE PROVIDERS SHALL HAVE NO LIABILITY OR RESPONSIBILITY AS A RESULT OF ANY UNAVAILABILITY OF, INACCESSIBILITY TO, OR INABILITY TO USE, THE PRODUCT OR WEBSITE, WHETHER OR NOT THE UNAVAILABILITY, INACCESSIBILITY, OR INABILITY TO USE, IS WITHIN THEIR CONTROL, EXCEPT FOR CREDITS OR REFUNDS PROVIDED BY DGOFFICE OR RESELLER UNDER THIS END USER AGREEMENT AND DGOFFICE’S OR RESELLER’S SUPPORT OBLIGATIONS UNDER THIS END USER AGREEMENT.

11. Data

PROVIDED THAT DGOFFICE HAS TAKEN REASONABLE PRECAUTIONS TO BACKUP DATA, DGOFFICE SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY LOSS OF DATA OR INFORMATION. IF DGOFFICE FAILS TO TAKE SUCH PRECAUTIONS, DGOFFICE’S TOTAL AGGREGATE LIABILITY FOR LOSS OF DATA SHALL NOT EXCEED THE AVERAGE ANNUAL AMOUNTS PAID TO DGOFFICE BY RESELLER OR END USER FOR THE STORAGE OF END USER’S DATA USING THE PRODUCT.

12. Links

The product may provide, or third parties may provide through the product, links to other internet sites or resources. Because DGOFFICE has no control over such sites and resources, end user acknowledges and agrees that DGOFFICE shall not be held responsible for the availability of such external sites or resources and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such other sites or resources.

13. Privacy Policy

All access to and use of the product and website shall be subject to DGOFFICE’s (and its service providers’) privacy policies posted on the website, as updated by DGOFFICE from time to time. DGOFFICE has the right to update its privacy policies without notice by posting an updated privacy policy on its website. End user’s continued access and use of the website shall constitute agreement to any updated privacy policy.

14. Intellectual property

a. Suggestions

End user acknowledges that DGOFFICE does not wish to receive any information or technology related to the product or the website unless the information and technology can be used in any products and services, in DGOFFICE’s discretion. Accordingly, except as otherwise agreed by DGOFFICE in writing prior to disclosure of the information or technology to DGOFFICE, DGOFFICE has the non-exclusive, perpetual, non-terminable, paid-up, royalty free, worldwide right and license, with the right to grant and authorize sublicenses, to incorporate all such information and technology into products and services and to make, have made, use, sell, offer to sell, import, reproduce, distribute, transmit, publicly display and perform, and otherwise exploit such products, services and derivatives thereof.

b. Trademarks

DGOffice, DGOffice.net, the DGOffice logo, and other DGOFFICE trademarks, trade names, service marks and logos are marks of DGOFFICE (the “DGOFFICE marks”), and end user shall not use or display the DGOFFICE marks or any marks or logos confusingly similar thereto.

c. Proprietary rights notices

End user shall not (and shall not allow any third party to) remove, alter or obscure any patent, copyright, trade secret, trademark, or other intellectual property or proprietary rights notices (including restricted rights notices) of DGOFFICE on the product.

d. No rights or licenses

No rights or licenses are granted to end user in this end user agreement. All rights, title, and interest in and to all technology and intellectual property concerning the product and the website are and shall be solely owned by DGOFFICE.

15. No warranties

EXCEPT FOR ANY SUPPORT OBLIGATIONS OF DGOFFICE OR RESELLER ALL PRODUCTS AND THE WEBSITE ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. DGOFFICE DOES NOT REPRESENT OR WARRANT THAT THE PRODUCT, OR THE WEBSITE OR FACILITIES USED TO PROVIDE THE PRODUCT OR WEBSITE, WILL BE ERROR FREE, SECURE, OR UNINTERRUPTED. NO DOCUMENTATION SHALL BE BINDING UPON, OR CONSTITUTE A REPRESENTATION OR WARRANTY BY, DGOFFICE.

16. Term and termination

a.

All product accounts shall have a term of at least one (1) year after the account has been provisioned by DGOFFICE, except to the extent that DGOFFICE has approved a shorter term in writing.

b.

In the event of any breach of the end user agreement, or any unauthorized access or use to the website or the products, or any failure to pay, end user’s account shall terminate thirty (30) days after notice of such breach, access, or use, unless end user has cured the breach, or unauthorized access or use, within such thirty (30) day period.

c.

DGOFFICE has the right to suspend and terminate the account of end user if there are any claims or actions are brought against DGOFFICE by end user or its affiliates or if any use of the product or website is causing harm to DGOFFICE, the product, or others; if DGOFFICE has not been paid for the product; or if DGOFFICE is prohibited or enjoined from providing the product.

DGOFFICE OR RESELLER SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY SUCH SUSPENSION OR TERMINATION,

subject to any refunds or credits that DGOFFICE or reseller may be required to pay as set forth in this end user agreement.

d.

DGOFFICE has the right to delete all customer data thirty (30) days after any termination or expiration of the end user’s account; provided that if end user did not have thirty (30) days’ notice of the termination or expiration, and if DGOFFICE has been paid all undisputed amounts due to DGOFFICE, DGOFFICE will give end user access to its account during such thirty (30) day period in accordance with the use terms described above as necessary to provide the end user with an opportunity to retrieve lawful customer data.

e.

In the event of any termination or expiration of this end user agreement, sections 1, 7, 8, 9 (the disclaimer of liability only), 10 (last sentence only), 11, 12, 13, 14, 15, 16(c) (last sentence only), 16(d), 16(e), 17, 18 and 19 of this end user agreement shall survive.

17. Dispute resolution

Except to the extent otherwise specified by DGOFFICE, any dispute or claim related to or arising out of end user’s access or use of the product or website, or the interpretation, making, performance, breach or termination of this end user agreement, that involves DGOFFICE or its affiliate, shall be finally settled by arbitration in accordance with the then current rules of arbitration of the court in Lelystad, The Netherlands. The proceedings and all pleadings, filings, written evidence, decisions and other relevant documents shall be in English. Any written evidence in a language other than English shall be submitted with an English translation. Any final decision issued in the arbitration shall be binding and conclusive upon the parties and may be entered as a final judgment by any court of competent jurisdiction. Each party shall bear its own costs in connection with the foregoing arbitration.

18. Governing law

EXCEPT TO THE EXTENT OTHERWISE AUTHORIZED BY DGOFFICE, ALL DISPUTES ARISING OUT OF OR RELATING TO THIS AGREEMENT THAT INVOLVE DGOFFICE OR ITS AFFILIATE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE NETHERLANDS, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES OF THE NETHERLANDS OR ANY OTHER JURISDICTION.

19. Indemnity

Customer shall indemnify and hold harmless each of DGOFFICE and its affiliates, and the directors, officers, employees, customers, licensors, and contractors of DGOFFICE and such affiliates, and the successors and assigns of any of the foregoing (the “DGOFFICE Indemnitees”), from and against any and all liabilities, damages, settlements, claims, actions, suits, proceedings, penalties, fines, costs and expenses (including, without limitation, reasonable attorneys’ fees and other expenses of litigation) incurred by any DGOFFICE Indemnitee based upon a claim of a third party to the extent resulting from: (a) a breach by end user of this end user agreement; (b) the negligence, or illegal or willful misconduct, of end user; (c) any customer data; or (d) otherwise arising out of end user’s use of the product.

Customer’s obligations under this Section 18 shall not apply if the claim is caused by the product alone in the absence of any access, use or other exploitation by end user and in the absence of all customer data.

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