Weagree terms of licence – Community Weagree

Weagree terms of licence and services

Version 2.0 – 1 August 2020

These Weagree general terms of licence and services (the Terms and Conditions) form an integral part of the Services Summary (capitalised terms are defined in Article 2.1) specifying the commercial and practical parameters of the Licence granted to the customer identified in that Services Summary or the legal entity identified in any purchase order received by Weagree in connection with the Services, as the case may be (the Customer). These Terms and Conditions contains important provisions on the permitted scope of use, and exclusions of liability.

In these Terms and Conditions, Weagree means Weagree B.V., a private limited liability company under the laws of the Netherlands, registered in the Trade Register under number 343 152 68 and with VAT number NL8200.22.111.B01.

1. SCOPE OF APPLICATION

1.1 Framework agreement. The terms and conditions of these Terms and Conditions apply to all Services provided by Weagree to Customer (its Affiliate or any Supported User):

(a) a Licence and all End Users and Supported Users or extension of a granted Licence to new End Users;

(b) Maintenance and Support;

(d) Template Insertion Services.

In the absence of a Services Summary (a) any Use of the Weagree Wizard, (b) the submission by or on behalf of Customer to Weagree of any model contract, sample contract, standard form precedent accompanied by a request for Contract Upgrading Services, or (c) the submission of Model Contracts with a request for Template Insertion Services is deemed to constitute the Parties’ agreement to provide and be provided with the Services subject to these Terms and Conditions.

1.1A Not for consumers or non-lawyers. No Model Contract may be considered to constitute ‘legal advice’. If you are a consumer or private individual, or if you are not a qualified legal professional, you must note that:

(a) the content on this website is not designed for you, except for your education or qualification as a legal professional;

(b) you should not only use the website with extraordinary care; all use of any Model Contract is at your own risk;

(c) if you downloaded any Model Contract, (i) you may not rely on it as ‘legal advice’, and (ii) you must seek professional legal advice by a qualified legal adviser in relation to such document (and this website is not the marketplace to seek such advice);

(d) you should not rely on any advice, opinion or point of view made by another user on the community platform (‘discussion forum’) of the Website.

1.2 Licensed services. Subject to Sections 1.3 and 7.1, Articles 3, 9, 10 and 13, and subject to Customer’s agreement to the Weagree hereby grants to Customer, and Customer hereby accepts from Weagree:

(a) a royalty-bearing, non-exclusive, licence for End Users only to Use the Weagree Wizard, in Object Code form only; and

(b) a royalty-free, non-exclusive, licence to use the Documentation for purposes of Using the Weagree Wizard only.

Licensor’s payment of the Licence or Services fees as reflected in a Services Summary constitutes Customer’s acceptance of the Licence granted in this Section 1.2 (subject to these Terms and Conditions).

1.3 End Users. The Licence is limited to named users, is personal to Customer, and only for such number of End Users as it has taken out a (paid up) licence. Customer shall procure that all End Users granted access to the Weagree Wizard through Customer’s website, intranet, by dissemination of a personal account or other login facility shall comply with these Terms and Conditions.

1.4 Special terms and conditions. In the event of any ambiguity or inconsistency between a general term or condition in these Terms and Conditions and the provisions of the Services Summary, the latter shall prevail.

2. INTERPRETATION

2.1 Definitions. In these Terms and Conditions:

Affiliate means, in relation to a person: any company or other entity, whether or not a legal person, which directly or indirectly controls, is controlled by or is under joint control with a Party. For this purpose, a Party is deemed to control a company or entity if it (a) owns, directly or indirectly, more than 50 per cent of the capital of the other company or entity, or (b) has the power to direct, or cause the direction of, the management and policies of such company or entity.

Business Days means regular working days excluding official and national holidays in the Netherlands (and excluding Saturdays and Sundays).

Business Hours means the hours between 8:30 a.m. and 5:00 p.m. CET on Business Days.

Confidential Information means any information of a confidential or proprietary nature:

(a) whether of commercial, financial or technical nature;

(b) customer, supplier, business, product or production-related or otherwise;

(c) model contracts, individual contract clauses, contract definitions, contract schedules and annexes, whether or not inserted in the Weagree Wizard;

(d) the Documentation, the administrator functionality of the Weagree Wizard, functional, technical and other specifications of the Weagree Wizard, the roadmap of the Weagree Wizard and related process designs;

(e) usernames, passwords and information relating to accessing the Weagree Wizard;

(f) documents and files created by the Weagree Wizard, any other data inserted or to be inserted into the Weagree Wizard; and

(g) materials and ideas.

Such information may be in any form, provided that it is disclosed or accessible in connection with or by reference to these Terms and Conditions.

Contract Upgrading Services means services for improving or reviewing such model contracts, model contract clauses, standard form precedents, legal certificates and other legal documents as the Parties may agree from time to time.

Disclosing Party has the meaning ascribed to the term in Section 10.1.

Documentation means all documentation relating to the Weagree Wizard, including manuals, user guides, training materials for and explanatory videos of the Weagree Wizard, as Weagree may provide from time to time other than through its publicly accessible website.

Effective Date has the meaning ascribed to it in the Services Summary.

End User means a private individual, end-user, who (at the moment of using the Weagree Wizard) is named by Customer as a named user of the Weagree Wizard and to whom Customer has extended its Licence, and for whom Customer has paid the Licence Fee.

Error means any reproducible failure of the Weagree Wizard to operate under conditions of normal use in accordance with the specifications from time to time on Supported Hardware. For the avoidance of doubt, an Error excludes any such failure caused by (a) the use or operation of the Weagree Wizard with any other software or programming languages or in an environment or on hardware other than the Supported Hardware, or (b) Modifications not made or approved by Weagree.

Error Correction means (a) a correction of an Error, or (b) a workaround temporarily resolving an Error.

Hosting Services means hosting of the Weagree Wizard at the datacentre selected by Weagree from time to time.

Licence means the licences in Section 1.2.

Maintenance and Support means the services related to identifying, reproducing classifying and submitting Errors, delivering Updates and Upgrades, implementing the Weagree Wizard in Customer’s hardware and software environment and connecting it with Customer’s other software solutions.

Model Contract means any model contract, individual contract clause, contract definition, contract schedule or annex, including related Q&A Elements, inserted or to be inserted in the Weagree Wizard.

Modifications means any modifications, reconfigurations, improvements, translations, transformations or derivative works of the Weagree Wizard.

No-Attribution means that in the text of a contract or other legal document (including in headers, footers or cover page) based on a Model Contract (or part of a Model Contract) no mention or reference is required to be made to the original author of the Model Contract, except that any author’s name or reference in the ‘document properties’ of the Model Contract may not be removed.

Non-Commercial means not intended for or directed towards commercial advantage or monetary compensation, which includes, in relation to a service (or an offering that includes an option to procure services), that no part of the service, offering or so procured services is subject to monetary compensation, subscription or other commercial advantage; and Non-Commercial excludes use of any part of a Model Contract in a model contract or document intended to be sold or otherwise commercialised, and excludes use of any part of a Model Contract in document automation software offered to third persons if the third person will by the availability of the document automation service become (wholly or partly) dependent on the continuation of its otherwise commercial relationship with the provider of that service.

Object Code means all or any portion of the machine-readable or machine language version of the Weagree Wizard.

Q&A Element means, in relation to a Model Contract, any related questions, explanatory notes, optional (choice) answers, default answers, country lists, contracting policy instructions, user accessibility instructions or (preliminary) global questions and any other type of questionnaire-element made available in the Weagree Wizard from time to time.

Receiving Party has the meaning ascribed to the term in Section 10.1.

Services means Contract Upgrading Services, Template Insertion Services and Maintenance and Support, as the case may be.

Services Summary means the specific terms applicable to Customer, and to which these Terms and Conditions is attached.

Source Code means the compilable or human-readable version of the source code of the Weagree Wizard, including all comments and procedural code, associated flow charts, concepts, algorithms, technology, comments and other written instructions.

Supported Users means:

(a) in relation to Errors, the End Users who have been expressly authorised by it for requesting Maintenance and Support; and

(b) in relation to Template Insertion Services, the persons appointed by Customer from time to time (i) who are an End User with the role of ‘administrator’ or ‘template administrator’ of the Weagree Wizard, or (ii) for performing acceptance testing on Template Insertion Services.

Tailoring means, in relation to a Model Contract, the tailoring (inserting, reformulating or deleting of certain provisions and inserting data and other information) or the (linguistic) translation for (i) a specific transaction or legal relationship, or (ii) use as a model contract specific for a certain business; and “Tailoring” excludes any automation of a Model Contract (or a modified or translated version of a Model Contract) as part of a service (offered to the public, to a restricted group of subscribers, clients or customers, or to persons outside your own organisation), unless all of the Model Contract, such automation and all tailoring service related to it are Non-Commercial.

Template Insertion Services means:

(a) inserting, modifying or deleting a Model Contract or Q&A Elements in the Weagree Wizard;

(b) inserting, modifying or deleting the contract house styles to be applied to contracts generated with the Weagree Wizard;

(d) advising Supported Users who completed the administrator training for the Weagree Wizard in respect of inserting, modifying or deleting Model Contracts and Q&A Elements in the Weagree Wizard.

Update means an Error Correction, improved version, maintenance release of or revisions to the Weagree Wizard or any part thereof, consistent with the Specifications but not including incremental additional capabilities or functionality compared to the immediately preceding version of the Weagree Wizard. An Update excludes any Upgrade and includes any version of the Weagree Wizard identified as such by Weagree.

Upgrade means a version of the Weagree Wizard, or any material part thereof, with incremental additional capabilities or functionality compared to the immediately preceding version of the Weagree Wizard. An Upgrade includes any version of the Weagree Wizard identified as such by Weagree.

Use means, in relation to the Weagree Wizard, to:

(a) create contracts on the basis of inserted Model Contracts;

(b) insert, organise, translate, modify and delete Model Contracts;

(d) store and retrieve contracts and contract clauses generated by the Weagree Wizard;

(e) use the workflow functionalities of the Weagree Wizard as implemented by Weagree from time to time; and

(f) demonstrate, promote and market the Weagree Wizard.

Use means, in relation to any Model Contract, your Tailoring of the Model Contract:

(a) for a particular transaction, legal relationship or legal certification as reflected by the Model Contract, including the use and modification by any person involved in the transaction or legal relationship (single-transaction use); or

(b) as a model contract for transactions, legal relationships or legal certifications involving your own business, including the use and modification by any person involved in or engaged by your own business, for the use described under (a) (repeated use),

so, for the avoidance of doubt:

(i) if the Model Contract is translated, regardless of whether provisions are added, modified or deleted in the translation, for the use of such translation described under (a) and (b). In other words, a translation of content (even though modified or extended) does not as such permit a more extensive use of such translation than defined as “Use”; and

(ii) if you are an independent legal professional, a law firm, legal service provider or facilitator of legal services, and your Tailoring is not for single-transaction use (as described under (a)) or repeated use (as described under (b)) of a particular client or customer, you may not use a Model Contract as part of a service to clients or customers. In other words, uploading the Uploader’s content to the Platform does not entitle you to (also) make that content available in your services or on your platform.

Weagree Wizard means the contract assembly software application as described on Weagree’s website from time to time, including all Updates and Modifications from time to time.

2.2 Conflicting terms. Any standard terms of purchase or other general conditions printed on or referred to in any order-related document, including a purchase order submitted by Customer, do not apply to the Licence or the Services.

3. LICENCE RESTRICTIONS

3.1 Not sold. The Weagree Wizard is licensed (under copyright only) and not sold.

3.2 No licence to non-End Users. Customer shall not grant access to the Weagree Wizard to persons other than End Users. Customer shall instruct its End Users not to permit others access to or allow third persons to use such End User’s personal account of the Weagree Wizard.

3.3 No reverse engineering. Except as expressly permitted under Article 1, Customer shall not, and shall not permit any third party, to:

(a) copy, reproduce or distribute Weagree Wizard;

(b) copy, reproduce or distribute the Documentation, except as required for enabling a Supported User to Use the Weagree Wizard;

(c) assign, sublicense, lease, rent, loan, transfer, disclose or otherwise make available the Weagree Wizard or Documentation;

(d) create any Modifications, except as facilitated by functionality of the Weagree Wizard;

(e) modify, translate or create derivative works of any part of the Documentation;

(f) access, read, analyse or otherwise use any part of the Source Code;

(g) reverse assemble, decompile, disassemble or otherwise attempt to derive Source Code or the algorithmic nature of the Weagree Wizard;

(h) otherwise produce its own version of the Weagree Wizard (without copying the Source Code thereof); or

(i) remove or circumvent any protection of the Weagree Wizard,

except where a copy is necessitated by, or constitutes a backup copy necessary for, the ordinary performance of the Weagree Wizard in accordance with the Licence. For the avoidance of doubt, the Weagree Wizard may be copied for disaster recovery, archival storage, testing and quality assurance purposes.

3.4 No other rights or licences. Other than the Licence, no rights or licences are granted or implied, under any intellectual property rights of Weagree or any intellectual property in the Weagree Wizard or the Documentation.

3.5 Exclusions. These Terms and Conditions shall not be interpreted as imposing on Weagree any obligation to provide any technical information, except as expressly required in these Terms and Conditions or as required for configuring any Supported Hardware or any connectivity of the Weagree Wizard with Customer’s other software solutions. In no event shall Weagree be required to provide any Source Code to Customer.

3A. Limited licence to Use Model Contracts

3A.1 Licence under Model Contracts. By downloading a Model Contract as a registered user of the Platform, you are granted a limited, worldwide, non-exclusive, royalty-free, fully paid-up, licence to Use the Model Contracts on a Non-Commercial basis only, subject to this article 3A.

You do not have to comply with this article 3A for (parts of the) Model Contracts which are in the public domain and not covered by intellectual property law, or where your use is otherwise permitted by an applicable exception or limitation.

3A.2 Licence scope and restrictions. The licences granted to you pursuant to this article 3A and all related limitations and restrictions:

(a) also apply to any translation of the Model Contract, whether translated by you or a third person;

(b) extend (without restriction or modification) to model contracts, model clauses and forms created by using a Model Contract;

(c) are conditional on your continued compliance with these Terms of Use at all times (including after termination of your account or our Agreement);

(d) are separate in respect of each Model Contract that you download from the Platform;

(e) are perpetual, and will continue notwithstanding any termination of your account or our Agreement; and

(f) exclude any rights in respect of any proprietary name, logo, trademark or service mark embedded in a Model Contract.

5.3 Subsequent use. In relation to the use of a Model Contract (other than Your Model Contract) by you or your own organisation, you undertake with the Uploader:

(a) not to permit or facilitate others to do anything that these Terms of Use prohibit;

(b) to make reasonable endeavours to prevent use of the Model Contract other than permitted by this article 3A; and

(c) not to impose terms or conditions that legally restrict any other person Using the Model Contract from doing anything these Terms of Use (as supplemented by express terms and conditions in the relevant Model Contract, if any) expressly permit.

3A.4 No-Assignment. You may give attribution to the author of the Model Contract or Uploader in any reasonable manner, but not in any way that suggests the author of the Model Contract or the Uploader endorses you or your use, or in any way represents or warrants that the Model Contracts is legally valid, enforceable, adequate or complete for any purposes.

3A.5 Definitions. In these Terms of Use, the terms Non-Commercial, Use and No-Assignment have the respective meaning ascribed to it in the lead-in paragraphs of these Terms of Use.

3A.6 Title, IP ownership. Any Model Contract is the property of Weagree, and is subject to copyright and other intellectual property rights.

Model Contracts may not be downloaded, reproduced, distributed, republished, sold, licensed, made available or otherwise communicated to the public or to others not specifically permitted pursuant to this article 3A or exploited for any purposes, except with the express prior written consent of Weagree.

Where you repost Model Contracts, or include a Model Contract in your own model contract, you acquire no ownership or intellectual property or other rights whatsoever in that model contract. Subject to the rights expressly granted in this section, all rights in Model Contracts are reserved to Weagree.

4. CONTRACT UPGRADING SERVICES

4.1 Contract Upgrading Services. Upon a request for Contract Upgrading Services, Customer shall provide appropriately specific instructions, existing model contracts and examples of agreements. Weagree shall provide the Contract Upgrading Services substantially in accordance with the contract drafting conventions agreed between the Parties from time to time. In the absence of any agreed contract drafting conventions and in the absence of other specific drafting instructions, Weagree may designate and apply the drafting principles promulgated by it on its website.

4.2 Acceptance. All Contract Upgrading Services are subject to acceptance by Customer (or the Supported Users on its behalf). Acceptance testing by Customer or any of its End Users requires that a contract is created by answering all options offered in any Q&A Element during the questionnaire of the Weagree Wizard. Except as otherwise agreed between the Parties, results of Contract Upgrading Services may be delivered in part or in whole. Within 15 business days after a delivery of the upgraded model contract, individual contract clause, contract definition, or contract schedule or annex by Weagree, Customer shall conduct acceptance tests and notify Weagree whether or not it accepts the delivered Model Contracts (or which specific final changes are required to be made).

4.3 Acceptance and Template Insertion Services. If the Contract Upgrading Services are effected by Template Insertion Services or if Customer requests that the upgraded Model Contract be inserted into the Weagree Wizard, the results of Contract Upgrading Services shall be deemed to be accepted by Customer if the results of the Template Insertion Services are accepted by Customer (or deemed to be accepted).

4.4 IMPORTANT – Liability exclusion. Weagree shall in no event be liable for any damages or losses caused by or arising in connection with:

(a) the validity or enforceability of model contracts and model contract clauses resulting from Contract Upgrading Services; or

(b) Contract Upgrading Services resulting in model contracts, contract clauses, definitions, schedules or annexes not being in compliance with any law or regulations, not legally enforceable in any jurisdiction, not providing an adequate protection of a related person’s rights or interests, insufficiently detailed or otherwise inadequate for the particular purposes of Customer.

Without limiting the generality of this Section 4.4, any contracts used or generated before rejecting or not-accepting Contract Upgrading Services shall be for the exclusive risk and account of Customer.

5. TEMPLATE INSERTION SERVICES

5.1 Template Insertion Services. Weagree shall make reasonable efforts to provide Template Insertion Services as soon as reasonably possible after a request by a Supported User.

5.2 Knowhow management. In performing Template Insertion Services, Weagree shall make reasonable endeavours to insert and organise the Model Contracts in such manner that Customer’s contract knowhow inserted in the Weagree Wizard remains reasonably consistent and reuses model contract clauses and model definitions as much as reasonably possible. Accordingly:

(a) unless Customer instructs otherwise, differences in contract house style and presentation of the Model Contract to be inserted shall be disregarded; and

(b) if a Model Contract contains building blocks, contract clauses, definitions, or schedules or annexes similar to those in Model Contracts of Customer, and the differences are apparently insignificant, either building block, contract clause, definition, or schedule or annex may be amended by Weagree.

Weagree and the Supported Users undertake with each other to establish a way of working optimising these knowhow management related aspects as much as possible.

5.3 Q&A Elements. In connection with Template Insertion Services, Customer shall make reasonable endeavours to accompany each Model Contract as much as possible with the desired Q&A Elements, and in any event with clear instructions regarding the Weagree Wizard questions (and related options) affecting more than a single clause of the Model Contract.

5.4 Acceptance. Template Insertion Services are subject to acceptance by Customer. The results of Template Insertion Services shall be deemed to be accepted by Customer if a Supported User:

(a) instructs Weagree to move the inserted Model Contract to a user group in the Weagree Wizard other than designated for ‘construction’ or ‘acceptance’; or

(b) Uses the inserted Model Contract (other than for testing purposes).

5.5 WARNING – Liability exclusion. Weagree shall in no event be liable for any damages or losses caused by or arising in connection with:

(a) the accuracy, appropriateness or interpretation of any Q&A Elements and the contracts resulting from answering in one way or another, resulting from Template Insertion Services; or

(b) Template Insertion Services resulting in a formulation of any Q&A Element inadequately reflecting the contractual effects intended to be generated by such Q&A Element, or any Q&A Element not having been inserted adequately in the Weagree Wizard where Customer had not given specific instructions for inserting such Q&A Element.

Without limiting the generality of this Section 5.5, any contracts generated before rejecting or not accepting Template Insertion Services shall be for the exclusive risk and account of Customer.

6. SERVICE LEVELS

6.1 M&S services. Weagree shall make reasonable efforts to provide Maintenance and Support to Customer. Weagree shall in no event be obliged to (a) provide Maintenance and Support such that functionality of the Weagree Wizard will be modified, or (b) customise the Weagree Wizard for Customer or any End User.

6.2 Hosting. The Weagree Wizard shall be hosted by Weagree or a subcontractor selected by Weagree with such protection, storage and accessibility of Confidential Information of Customer as may reasonably be expected from time to time from good providers of hosting services.

6.3 Data leakage and security hacks. Weagree makes reasonable efforts in selecting and contracting third party hosting provider. However, subject to Weagree having implemented proper measures as commonly provided by professional hosting providers from time to time, Weagree shall not in any way be liable, and none of its subcontractors shall be liable, for any loss of data

7. LICENCE FEES AND SERVICE FEES

7.1 Licence fees. For each End User who is activated, or given access rights, to Use the Weagree Wizard Customer shall pay to Weagree a licence fee as indicated in the Services Summary.

7.2 Updates. Subject to Section 7.3 and 7.4, all Updates shall be free of additional licence fees, provided that Customer continued the Maintenance and Support and has not terminated these Terms and Conditions in accordance with Article 11.

7.3 Service fees. As further specified in Services Summary, the fees applicable to each Service shall be as follows:

(a) Contract Upgrading Services and Template Insertion Services are subject to an hourly rate or project price, to be agreed between the Parties from time to time; and

(b) Costs related to Modifications requested by Customer (and agreed to by Weagree), implementing the Weagree Wizard in Customer’s hardware and software environment, and connecting it with Customer’s other software solutions are subject to a fee or price to be agreed on a case-by-case basis.

7.4 Out-of-pocket expenses. Customer shall reimburse Weagree for all travel and reasonable out-of-pocket expenses incurred in relation to the Services.

7.5 Taxes. Unless clearly and specifically agreed otherwise:

(a) all prices are gross amounts and exclusive of any value added tax (VAT), sales tax, consumption tax, levies, duties of any kind or any other similar tax only, except as may be agreed by the Parties otherwise.

(b) if any payment under these Terms and Conditions is subject to any applicable VAT, sales tax, consumption tax, levies, duties of any kind or any other similar tax, Weagree shall be entitled to charge such tax to Customer, which shall be paid by Customer in addition to the amounts of fees pursuant to this Article 7.

7.6 Payment term. Customer shall make all payments as soon as reasonably possible but in any event within 14 days from the date of Weagree’s invoice. Licences under the Weagree Wizard and services obtained through Weagree’s website are promptly due and payable.

8. COVENANTS

8.1 Security measures. Weagree shall implement and maintain such measures regarding the protection, storage and accessibility of Confidential Information of Customer as may reasonably be expected from time to time from good providers of hosting services.

8.2 Administrator training. Weagree shall provide administrator training and Documentation to the Supported Users, in such manner as the Parties may agree from time to time.

8.3 Non-solicitation. No Party shall, until one year after termination of these Terms and Conditions, directly or indirectly, solicit or endeavour to entice away, any of the other Party’s Key Employee with whom such Party (or an employee of such Party) has come into contact during the provision of the Services, provided that a Party shall not be precluded or otherwise restricted from hiring or employing, or from having employment or hiring discussions with, any such person (a) who is not then employed by that other Party, (b) who contacts it without any solicitation by it, or (c) who responds to a general solicitation for employment placed by it or its agents in newspapers, journals, the internet, through recruiters or any media; and furthermore that any such generic solicitation shall not constitute a breach of these Terms and Conditions.

For the purpose of this Section 8.3, a Key Employee means any director, employee or subcontractor of a Party or an Affiliate of it and any of such subcontractor’s employees, in each case who is in a key position in view of performing the Services.

8.4 Licensee as a reference. Customer shall be available, and at the reasonable request of Weagree from time to time act, as a reference for and respond to queries of potential customers of Weagree or potential licensees of the Weagree Wizard about Customer’s experience with the Weagree Wizard or the Services. Weagree shall be entitled to refer to Customer on its website and in its promotional materials and activities.

9. INTELLECTUAL PROPERTY RIGHTS

9.1 Updates. Weagree’s delivery to Customer of any Updates shall constitute Weagree’s grant to Customer of a license to Use such Updates under these Terms and Conditions. Upon delivery, such Updates shall be deemed to become part of the Weagree Wizard and Customer’s (and a Supported User’s) use thereof shall be subject to the terms of these Terms and Conditions.

9.2 Feedback. Weagree is entitled to use all feedback, translations, suggestions and advice provided by Customer relating to the Weagree Wizard or the Documentation, free of charge.

9.3 Modifications. All intellectual property rights in Modifications, Updates and Upgrades shall be owned solely by Weagree. Weagree is entitled to install any Modifications and Updates and, accordingly, all such Modifications or Updates shall become part of the Weagree Wizard (and subject to the Licence). Any Modifications resulting from feedback given by Customer shall not entitle Customer to claim royalties or deductions on licence fees from Weagree for such Modifications or feedback.

9.4 Interfaces. Except if otherwise agreed in writing, all interfaces, application programming interfaces (‘API’), web-services and connections to other software applications created by or on behalf of Weagree shall be owned by Weagree.

9.5 Data inserted in the Weagree Wizard. All intellectual property rights in the data inserted by users of Customer into the databases operated by or through the Weagree Wizard shall be owned by Customer.

9.6 Copyrights and the Weagree Wizard. Customer or its Affiliates, as the case may be, shall be the sole owner of the contracts and other documents created or generated by (operation of) the Weagree Wizard. Except as otherwise agreed in writing, each Party shall remain the sole owner of any copyrights in the Model Contracts created by it, except that Customer and each licensed Affiliate of Customer shall be entitled to use and modify Weagree’s Model Contracts in connection with the Weagree Wizard and any contract negotiations related to contracts created by (operation of) the Weagree Wizard.

9.7 Copyrights on model contracts. Any model contracts and model contract clauses created or modified by Weagree for Customer shall be owned by Customer without any further assignment or transfer requirements being required to be fulfilled. For the avoidance of doubt, the preceding sentence does not apply to model contracts and model clauses that Weagree created for all or a particular group of its customers (and not specifically for Customer). Any model contract or model contract clause existing prior to Customer requesting its creation as part of a model contract or model contract clause shall remain owned by Weagree, except that Customer shall be entitled to use or modify such model contract and model contract clause without any restrictions. Weagree shall be entitled to use, modify and translate all model contracts and model contract clauses created or modified by it whether or not on the basis of model contracts or model contract clauses of Customer, provided that Weagree modifies them such that they cannot reasonably be identified with or not readily otherwise be related to Customer or Customer’s Affiliates.

10. CONFIDENTIALITY

10.1 General. A Party may disclose its Confidential Information (a Disclosing Party) to the other Party (a Receiving Party) as it deems necessary or helpful for the purposes of these Terms and Conditions.

10.2 Limited use. A Receiving Party shall not use Confidential Information for purposes other than in direct relation with these Terms and Conditions. The Receiving Party shall treat the Disclosing Party’s Confidential Information with at least the same degree of care as it would use in respect of its own confidential information of like importance, but in any event a reasonable level of care. In particular, the Receiving Party shall not disclose, disseminate or make accessible the Disclosing Party’s Confidential Information, in whole or in part, in any way or form, to anyone.

10.3 Disclosure to Affiliates and employees. The Receiving Party shall disclose Confidential Information to its Affiliates, employees or other representatives only on a need-to-know basis. Prior to the disclosure of the Disclosing Party’s Confidential Information to such persons, the Receiving Party shall inform each such person of the confidential nature of the Confidential Information and shall procure that the person expressly agrees to treat the Confidential Information as is provided in these Terms and Conditions. Notwithstanding due observance of these requirements, the Receiving Party shall be liable for any breach of those provisions by such person.

10.4 Exemptions. The restrictions and obligations in this Article 10 shall not apply to the Disclosing Party’s Confidential Information, which:

(a) is generally available to the public other than as a result of a disclosure by the Receiving Party (or its representatives);

(b) was received by the Receiving Party from a third party and not indirectly from the Disclosing Party in violation of any obligation of secrecy or non-use; or

(c) was in the possession of the Receiving Party prior to disclosure or is developed independent from such Confidential Information, as is shown by competent evidence.

10.5 Court orders. In the event that Confidential Information is required to be disclosed by the Receiving Party by virtue of a court order or statutory duty, the Receiving Party shall be allowed to do so, provided that it shall without delay inform the Disclosing Party in writing of receipt of such order or duty and enable the Disclosing Party reasonably to seek protection against such order or duty.

10.6 Return or destroy. Upon the first request of a Disclosing Party, the Receiving Party shall without delay (a) return all their copies, samples and extracts of, and all other physical media containing, the Disclosing Party’s Confidential Information, and (b) delete or destroy (and have deleted or destroyed) all automated data containing the Disclosing Party’s Confidential Information.

10.7 Continued secrecy. Notwithstanding the termination or expiration of these Terms and Conditions for any reason, the secrecy and non-use obligations of the Receiving Party shall continue for five years after the expiry of such termination or expiration.

11. TERM AND TERMINATION

11.1 Term. These Terms and Conditions shall commence on the Effective Date and remain in force for a period of [three years]. These Terms and Conditions shall be extended automatically each time for a subsequent period of one year. Each Party may terminate these Terms and Conditions by giving the other Party written notice ultimately three months prior to the expiration of these Terms and Conditions.

11.2 Material breach. Each Party is entitled to terminate these Terms and Conditions with immediate effect by written notice to the other Party, if the other Party materially breaches or persistently fails to perform material terms or conditions of these Terms and Conditions and:

(a) such breach or failure is not capable of remedy;

(b) if capable of remedy, such breach or failure is not remedied within 120 days after written notice from a Party requiring such breach or failure to be remedied,

unless such breach or failure, having regard to its nature or minor importance, does not justify termination and its consequences. A breach of these Terms and Conditions by an End User also constitutes a breach of these Terms and Conditions by Customer.

11.3 Insolvency. Each Party is entitled to terminate these Terms and Conditions with immediate effect by written notice to the other Party if the other Party is declared bankruptcy, or subject to insolvency or suspension of payments proceedings.

11.4 Consequences of termination. Upon termination of these Terms and Conditions becoming effective:

(a) the Licence shall immediately end;

(b) Sections 8.3, 14.3 and 14.4, and Articles 9, 10 and 13 remain in force;

(c) Weagree shall be free to make inaccessible or destroy the Weagree Wizard, all Model Contracts and all contracts and contract clauses generated by the Wizard.

12. WARRANTIES

12.1 Warranties. Weagree hereby warrants to Customer that:

(a) during a term of 30 days after the first delivery of the Weagree Wizard, the Weagree Wizard shall perform the functionalities specified in the latest specifications of the Weagree Wizard and the Documentation; and

(b) the Weagree Wizard shall be free of any virus or harmful destructive or disabling mechanism or device.

12.2 Remedy. Customer’s sole and exclusive remedy for breach of the warranty in Section 12.1, shall be its entitlement to Maintenance and Support, provided that it has paid all Service Fees due and payable.

12.3 Disclaimer. Except for the warranties in Section 12.1, Weagree disclaims all other warranties, express or implied, including any implied warranties of fitness for a particular purpose and merchantability.

12.4 Available contracts AS IS. All Model Contracts drafted by Weagree and inserted in the Weagree Wizard shall be available ‘AS IS’ without any warranty of any kind. Weagree disclaims all liability for any damages that may result from the use of such Model Contracts.

13. LIMITATIONS OF LIABILITY

13.1 SPECIFIC EXCLUSIONS OF LIABILITY. In addition to the specific exclusions of liability in Sections 4.4 and 5.5, a Party shall in no event be liable for any damages or losses caused by or arising in connection with Services which are subject to ‘acceptance’ by Customer. Without limiting the generality of this Section 13.1, any contracts generated before rejecting or not-accepting Contract Upgrading Services or Template Insertion Services shall be for the exclusive risk and account of Customer.

13.2 ALL INDIRECT DAMAGES EXCLUDED. A Party shall in no event be liable for any type of indirect, incidental, special or consequential damages or losses, howsoever caused or arising, including any lost profits, lost income or revenue, loss of opportunity, lost production, loss of or damage to goodwill or reputation, lost data, lost interest and lost savings. This limitation shall apply even if Weagree has been advised or may be aware of the possibility of such damages or losses.

13.3 GENERAL LIMITATION OF LIABILITY. The aggregate liability of Weagree arising under or in connection with these Terms and Conditions shall in no event exceed the amounts actually paid by Customer to Weagree pursuant to these Terms and Conditions during the 12 months immediately preceding the event giving rise to any such liability.

14. MISCELLANEOUS

14.1 Amendments. These Terms and Conditions may be amended by written agreement signed by authorized representatives of each Party only.

14.2 Assignment. Weagree is entitled to assign its rights or obligations under these Terms and Conditions without the written consent of Customer. Customer is not entitled to assign any rights or obligations pursuant to these Terms and Conditions, except with the explicit written consent of Weagree.

14.3 Entire agreement. These Terms and Conditions constitutes the entire agreement between Weagree and Customer and supersedes any preceding agreement between the Parties on the Licence, the Services or any other subject matter of these Terms and Conditions.

14.4 Waiver. Any waiver shall only have effect if it is specific and in writing. The failure of a Party to enforce any of the provisions of these Terms and Conditions shall in no event be considered a waiver of such provision. No waiver of a provision by a Party shall (a) preclude that Party from later enforcing any other provision of these Terms and Conditions, (b) operate as a waiver of any succeeding breach of the same provision of these Terms and Conditions.

14.5 Severability. If any provision in these Terms and Conditions is found to be invalid or unenforceable in any respect in any jurisdiction the validity or enforceability of such provision shall not in any way be affected in respect of any other jurisdiction and the validity and enforceability of the remaining provisions shall not be affected, unless these Terms and Conditions reasonably fails in its essential purpose.

14.6 Governing law. These Terms and Conditions is governed by the laws of the Netherlands.

14.7 Dispute resolution. Any dispute or controversy arising between the Parties out of or in connection with these Terms and Conditions which cannot be settled amicably between the Parties within three months of such dispute or controversy having arisen by way of either Party informing the other Party thereof in writing, whether during or after its term, shall be finally resolved by the competent courts in Amsterdam, the Netherlands.

The following Sections 14.5, 14.6 and 14.7 are for the sake of conspicuousness and to ascertain their comprehension by Customer:

1.1 SPECIFIC EXCLUSIONS OF LIABILITY. IN ADDITION TO THE SPECIFIC EXCLUSIONS OF LIABILITY IN SECTIONS 4.4 AND 5.5, A PARTY SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES OR LOSSES CAUSED BY OR ARISING IN CONNECTION WITH:

(a) SERVICES WHICH ARE SUBJECT TO ‘ACCEPTANCE’ BY CUSTOMER;

(b) CONTRACT UPGRADING SERVICES RESULTING IN MODEL CONTRACTS, CONTRACT CLAUSES, DEFINITIONS, SCHEDULES OR ANNEXES NOT BEING IN COMPLIANCE WITH ANY LAW OR REGULATIONS, NOT LEGALLY ENFORCEABLE IN ANY JURISDICTION, NOT PROVIDING AN ADEQUATE PROTECTION OF A RELATED PERSON’S RIGHTS OR INTERESTS, INSUFFICIENTLY DETAILED OR OTHERWISE INADEQUATE FOR THE PARTICULAR PURPOSES OF CUSTOMER; OR

(c) TEMPLATE INSERTION SERVICES RESULTING IN A FORMULATION OF ANY Q&A ELEMENT INADEQUATELY REFLECTING THE CONTRACTUAL EFFECTS INTENDED TO BE GENERATED BY SUCH Q&A ELEMENT, OR ANY Q&A ELEMENT NOT HAVING BEEN INSERTED ADEQUATELY IN THE WEAGREE WIZARD WHERE CUSTOMER HAS NOT GIVEN SPECIFIC INSTRUCTIONS FOR INSERTING SUCH Q&A ELEMENT.

WITHOUT LIMITING THE GENERALITY OF THIS SECTION 14.5, ANY CONTRACTS GENERATED BEFORE REJECTING OR NOT-ACCEPTING CONTRACT UPGRADING SERVICES OR TEMPLATE INSERTION SERVICES SHALL BE FOR THE EXCLUSIVE RISK AND ACCOUNT OF CUSTOMER.

1.2 ALL INDIRECT DAMAGES EXCLUDED. A PARTY SHALL IN NO EVENT BE LIABLE FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSSES, HOWSOEVER CAUSED OR ARISING, INCLUDING ANY LOST PROFITS, LOST INCOME OR REVENUE, LOSS OF OPPORTUNITY, LOST PRODUCTION, LOSS OF OR DAMAGE TO GOODWILL OR REPUTATION, LOST DATA, LOST INTEREST AND LOST SAVINGS. THIS LIMITATION SHALL APPLY EVEN IF WEAGREE HAS BEEN ADVISED OR MAY BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

1.3 GENERAL LIMITATION OF LIABILITY. THE AGGREGATE LIABILITY OF WEAGREE ARISING UNDER OR IN CONNECTION WITH THESE TERMS AND CONDITIONS SHALL IN NO EVENT EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO WEAGREE PURSUANT TO THESE TERMS AND CONDITIONS DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO ANY SUCH LIABILITY.

Weagree terms of licence and services

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