4. AUDIT
During the term of this Agreement and for a period of 2 years after termination or expiration, Gerber may, upon reasonable notice to you, audit your books and records to determine your compliance with this Agreement. In the event any such audit reveals that you have underpaid Gerber by an amount greater than 5% of the amounts due to Gerber in the period being audited, or that you have knowingly breached any material obligation hereunder, then, in addition to such other remedies as Gerber may have, you shall: (a) promptly (in any event not later than 14 days after date of notice from Gerber) pay to Gerber all underpaid amounts; and (b) pay or reimburse Gerber the cost of the audit.
5. INTELLECTUAL PROPERTY
Subject to the limited rights expressly granted hereunder, as between Gerber and you, all Intellectual Property Rights in the trademarks, services marks, trade names or services names of Gerber (“Gerber Marks”), the Services, the Gerber Platform, any Software (including interfaces), Content and any databases, technologies, data (excluding Customer Data) and all copies, modifications and derivative works thereof (collectively, the “Gerber Materials”) will remain the sole property of Gerber and its Affiliates or licensors and Gerber, its Affiliates and its licensors reserve their right, title and interests in and to the Gerber Marks, the Gerber Platform, Services, Software, Content and Gerber Materials.
No rights are granted to you hereunder other than as expressly set forth herein. Subject to the foregoing, as between you and Gerber, all Intellectual Property Rights in the Customer Data will remain your sole property.
6. MARKS
Except as specifically authorized herein or with applicable prior written consent, you will not use the Gerber Marks or make any statement (whether oral or in writing), in any external advertising, marketing or promotional materials, regarding Gerber or the Services. Absent your prior written consent, Gerber will not use your trademarks, services marks, trade names or services names or make any statement (whether oral or in writing), in any external advertising, marketing or promotional materials, regarding your use of the Services. Any goodwill generated through your use of any Gerber Marks will inure solely to the owner of such Gerber Marks.
7. FEES AND PAYMENT
7.1 Fees
You will pay all Fees specified in the applicable Order Form. Except as otherwise specified herein or in an Order Form: (a) payment obligations are non-cancellable and Fees are non-refundable; and (b) quantities purchased cannot be decreased during the relevant Subscription Term.
7.2 Invoicing and Payment
Unless otherwise set forth in the applicable Order Form, Fees for Services shall be invoiced annually in advance and you shall pay any Fees within 30 days of the date of the applicable invoice, without set-off, counterclaim or deduction. Any recurring Fees will accrue from the first day of the month following the date that the relevant portion of the Services is made available by Gerber, until the end of the month in which any expiration or termination of such Services (or relevant portion thereof) takes effect. In the event you fail to pay any Fees when due and such Fees remain unpaid for a period of 10 days following notice from Gerber, Gerber reserves the right to suspend provision of the Services to you until such time as full payment has been received. Gerber may apply a late fee of 1.5% per month or the highest lawful interest rate (whichever is the lower) to all amounts not paid to Gerber when due.
7.3 Taxes
All Fees are exclusive of taxes and duties (including withholding taxes, value added tax or other taxes, but excluding income taxes imposed on Gerber). You will also pay any applicable tax and duties in connection with your use of the Services. You will provide to Gerber written evidence of any withholding tax paid by you. If you are obligated to withhold or deduct any portion of the Fees, then you will pay Gerber such amounts as will ensure that the net receipt, after tax and duties, by Gerber in respect of the Fees is the same as it would have been if such payment was not subject to the tax and duties.
7.4 Additional Fees
Fees for additional or other professional services will be charged and invoiced based on Gerber’s standard service, time and materials rates. Current service, time and materials rates are available upon request.
7.5 Changes to Fees
Fees shall be increased each year during the Subscription Term by a percentage equal to the percentage increase, if any, in the inflation rate determined solely by Gerber, which determination will be based upon the currency in which Customer is invoiced (in each case, the “Index”) for the most recent twelve (12) month period ending prior to the date of the increase, as compared to the preceding twelve (12) month period.
In case of percentage decrease or flat percentage in the Index in any given year, the Fees to be paid by the Customer in the subsequent year will be the same as for the preceding year. Customers in the educational sector shall pay Fees for support only, and such Fees are subject to change upon commencement of each Subscription Term.
8. TERM AND TERMINATION
8.1 Term of Agreement
This Agreement commences on the date you first accept it and continues until all Services hereunder have expired or have terminated.
8.2 Term of Subscription
For Subscriptions, the Subscription Term of each Subscription shall be as specified in the applicable Order Form. Except as otherwise specified in the Order Form, Subscriptions will automatically renew for additional periods equal to the expiring Subscription Term or one year (whichever is the shorter), unless either party gives the other written notice (email acceptable) at least 60 days before the end of the then-current Subscription Term.
8.3 Termination
Either party may terminate this Agreement, immediately upon written notice, if the other party: (a) materially breaches this Agreement and the breach (i) remains uncured 30 days after the date the breaching party receives written notice from the other party describing the breach and requiring it to be cured or (i) is incapable of being cured; or (b) if the other party becomes subject of petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
8.4 Discontinuance of Services
Gerber may at any time discontinue: (a) any of the Services (or version thereof), including discontinuing any of the Services (or version thereof) as a Subscription offering; or (b) the provision of Additional Services Support for any applicable Services (or version thereof), and terminate any applicable Order Form and Services Support Contract, as applicable, if it has generally ceased to provide such Services or Additional Services Support to customers. In such event, Gerber shall use commercially reasonable efforts to: (i) provide to you at least 60 days prior written notice; and (ii) make available to you substitute services for the duration of the existing Subscription Term.
8.5 Effects of Termination
8.5.1 Upon the expiration or termination of this Agreement or the Cloud Services, you will immediately cease accessing and using such Cloud Services, Gerber may immediately deactivate or delete your Access Credentials and all associated materials, without any obligation to provide any further access to the foregoing and, in the case of Installed Software for which you do not have a perpetual license, you will uninstall such Installed Software from your hardware, or, upon our direction, return or delete (with certification to Gerber of such deletion) the Installed Software including all copies in your possession or control. If you have a perpetual license to Installed Software and we terminate this Agreement in accordance with Section 8.3(a) (termination for breach), you will uninstall such Installed Software from your hardware, or, upon our direction return or delete (with certification to Gerber of such deletion) the Installed Software including all copies in your possession or control.
8.5.2 If you terminate this Agreement in accordance with Section 8.3(a) (termination for breach), as determined by a court of competent jurisdiction in a final judgement that Gerber materially breached this Agreement, Gerber will provide a pro-rata refund to you of any prepaid Fees for the remainder of the prepaid term as of the date of termination. If you terminate or cancel any of the Services other than as permitted by this Agreement, or if Gerber terminates this Agreement as a result of your breach, you will pay all Fees that would have been payable through the date that the applicable Services could have been cancelled by you in accordance with this Agreement. In no event will the termination of this Agreement relieve you of your obligation to pay any Fees payable to Gerber for the period prior to the effective date of termination.
8.5.3 With respect to Cloud Services: In connection with the expiration or termination of this Agreement, unless otherwise specified in the applicable Order Form, upon notice to Gerber, such notice to be provided within 90 days following expiration or termination of this Agreement, you may elect to either: (a) request that Gerber make Customer Data (if any) available for export, at no additional charge, and provide images of the file format(s) associated with the applicable supported image type(s) as determined by Gerber and all other Customer Data in CSV file format; or (b) agree with Gerber to provide to you additional or other professional services, at Gerber’s applicable hourly rates, to export the Customer Data into other file formats. In no event will Gerber have any obligation to store or deliver the Customer Data to you other than as specified above nor shall Gerber be required to maintain the Customer Data in its systems for more than 180 days after the expiration or termination of this Agreement (“Storage Period”). Following the Storage Period, or earlier if requested by you in writing, Gerber will delete any and all live Customer Data in its systems or otherwise in its possession or control unless applicable law requires retention. Customer Data contained in backup media may be retained until such backup media is automatically destroyed.
8.5.4 With respect to Installed Software, you are responsible for retaining and securing complete copies of original Customer Data at all times.
8.5.5 Upon expiration or termination of this Agreement, Confidential Information of the Disclosing Party will be returned or destroyed as required by this Agreement.
8.6 Survival
Sections 3 (Customer Data), 4 (Audit), 5 (Intellectual Property), 7 (Fees and Payment), 8.5 (Effects of Termination), 8.6 (Survival), 9 (Confidential Information), 11 (Disclaimer), 12 (Indemnity), 13 (Limitation of Liability), 14 (Feedback), 15 (Export Control), 17 (Miscellaneous), and 18 (Definitions) will survive any expiration or termination of this Agreement.
9. CONFIDENTIAL INFORMATION
9.1 Definition of Confidential Information
“Confidential Information” means information in any form (including written or oral form) of a business, financial, or technical nature that is or should reasonably be known to be confidential, and that is disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”). Your Confidential Information includes Customer Data and Confidential Information of Gerber includes the Services, Content, and this Agreement. Confidential Information of each party includes business and marketing plans, technology and technology information, product plans and designs, and business processes disclosed by each party. However, Confidential Information does not include any information that: (a) is or becomes (through no act or omission of the Receiving Party) generally available to the public; (b) becomes known to the Receiving Party or any of its Affiliates on a non-confidential basis through a third-party who is not subject to an obligation of confidentiality with respect to that information; (c) was lawfully in the possession of the Receiving Party or any of its Affiliates prior to such disclosure; (d) is independently developed by the Receiving Party or any of its Affiliates; or (e) the Disclosing Party agrees in writing is not confidential or may be disclosed, solely to the extent of that consent.
9.2 Non-Disclosure
The Receiving Party will hold the Disclosing Party’s Confidential Information in confidence and will not disclose any part of it to any third-party except to its Affiliates, consultants and third-party contractors (including financial advisors, accountants and attorneys) (collectively, “Representatives”) who are acting on behalf of the Receiving Party and are bound by non-disclosure commitments substantially similar to those contained in this Agreement, or are otherwise protected by legal privilege. If a Receiving Party is legally compelled to disclose the Disclosing Party’s Confidential Information, the Receiving Party shall: (a) provide prompt notice (if legally permissible) to the Disclosing Party so that the Disclosing Party can seek a protective order or other appropriate remedy; and (b) limit any such disclosure to the extent of the legal requirement. Any such disclosed information will remain Confidential Information despite such disclosure, notwithstanding Section 9.1 (a)–(b) above.
9.3 Deletion or Return of Confidential Information
Upon the Disclosing Party’s request at any time, the Receiving Party will promptly return, delete or destroy the Disclosing Party’s Confidential Information, except for copies of such Confidential Information as required to be retained by law or regulation or to support the enforcement or defense of a party’s rights under this Agreement.
10. REPRESENTATIONS AND WARRANTIES
10.1 Representations
Each party represents that it has validly entered into this Agreement and has the legal power to do so.
10.2 Gerber Warranties
Gerber warrants that it will provide the Services in a professional and workmanlike manner, in accordance with applicable industry standards. In the event of any breach of the foregoing, you shall be entitled to request a re-performance of the applicable Services. The foregoing shall be your sole and exclusive remedy for breach of this warranty. Any warranty provided pursuant to this Agreement or applicable Order Form is expressly conditioned upon and may be voided by Gerber in the event you (a) fail to maintain proper environment for operation of the Services in accordance with Gerber’s recommendations; (b) fail to install any Fix or New Version issued by Gerber to you; (c) perform any modification to the Services not authorized by Gerber in writing; (d) install the Installed Software in a manner not substantially in compliance with Gerber’s written specifications; (e) connect to the Services any other device not approved, in advance, by Gerber; (f) use the Services in breach of this Agreement; or (f) use with the Services any computer software which Gerber reasonably determines interferes with the efficient operation of the Services.
11. DISCLAIMER
Except as expressly provided herein, all warranties, conditions and other terms implied by statute or common law, including warranties or other terms as to suitability, merchantability, satisfactory quality, fitness for a particular purpose and non-infringement, are excluded to the maximum extent permitted by applicable law. The Services (including any Content available therein) are provided “as is” and as available exclusive of any warranties of any kind.
Gerber does not represent or warrant that the Services or Content will be free of any inaccuracies, interruptions, delays, omissions or errors, or completely secure (“Faults”), or that any Faults will be corrected. Gerber will have no liability to you for any losses relating to or arising from: (a) any Faults; (b) any Infrastructure or third-party equipment, software, facilities, services, information or materials not furnished by Gerber; (c) the acts, omissions and workmanship of your employees, contractors, agents or suppliers; (d) the improper or negligent use or operation of the Services; or (e) Installed Software or equipment altered or repaired by personnel other than those in the employ of Gerber or authorized in writing by Gerber to repair the Installed Software or equipment.
Gerber will not be liable for damages of any kind or nature resulting from Installed Software or equipment which have been modified where such modifications have been performed by a party other than Gerber or made by Gerber at your direction.
12. INDEMNITY
12.1 Indemnification by Gerber
Gerber will defend, indemnify and hold you harmless against all liabilities, damages, judgments, awards, losses, costs, expenses and fees (including reasonable attorneys’ fees) (“Losses”) arising out of any third-party claim alleging that your use of the Services as permitted under this Agreement infringes or violates such third-party’s Intellectual Property Rights. This Section 12.1 will not apply to any claim that arises from: (a) any use of the Services not permitted under this Agreement; (b) the combination or modification of the Services with other products, equipment, software, services or data not supplied by Gerber where the infringement would not have occurred but for such combination or modification; or (c) any Customer Data.
12.2 Gerber Mitigation Rights
If Gerber receives information about an infringement or misappropriation claim related to the Services Gerber may, either: (a) procure for you the right to continue using the Services, as applicable; (b) replace or modify the Services, as applicable, in a functionally equivalent manner so that they no longer infringe. If neither sections (a) nor (b) could be achieved then Gerber may terminate the applicable Order Form or your rights to use the affected Service, and refund to you a pro-rata amount of any Fees prepaid to Gerber and applicable to the unutilized portion of the Subscription Term for the terminated Service.
12.3 Indemnification by you
You will defend, indemnify and hold Gerber and its Affiliates harmless against all Losses arising out of any third-party claim: (a) alleging that any Customer Data or you use of Customer Data with the Services infringes or violates such third-party’s Intellectual Property Rights; or (b) arising from your use of the Services in an unlawful manner or in violation of this Agreement.
12.4 Procedure
The indemnification obligations under this Section 12 are conditioned on the indemnified party: (a) providing the indemnifying party with prompt notice of the details of the claim (except that any delay in providing such notice will not relieve the indemnifying party of its obligations to the extent the indemnifying party is not materially prejudiced by such delay) and, if the indemnifying party requests it, control of the claim; (b) cooperating, at the indemnifying party’s expense, in the defense of the claim; and (c) not making any admission or taking steps to settle the claim without the indemnifying party’s prior written approval. The indemnified party may participate, at its expense, in the defense of the claim through legal counsel of its choice.
13. LIMITATION OF LIABILITY
13.1 Limitation of Liability
Subject to Section 13.3 below, in no event shall the aggregate liability of each party together with all of its Affiliates arising out of or related to this Agreement exceed the total amount paid by you hereunder for the Services giving rise to the liability in the 12 months immediately preceding the first incident out of which the liability arose. The foregoing limitation will apply whether an action is in contract or tort and regardless of the theory of liability.
13.2 Exclusion of Certain Claims
Subject to Section 13.3 below, in no event will either party be liable to the other party or to any third-party for any consequential, indirect, special, incidental, punitive or exemplary damages, whether foreseeable or unforeseeable, even if such party has been advised of the possibility of such damages, arising out of: (a) the performance or non-performance of this Agreement or any related agreement, or any software, products or services provided hereunder; or (b) any claim, cause of action, breach of contract or any express or implied warranty, under this Agreement, any related agreement or otherwise, misrepresentation, negligence, strict liability, or other tort. IN NO EVENT WILL EITHER PARTYBE LIABLE FOR ANY LOST PROFITS, LOSS OF USE, LOSS OF DATA, DATA BREACH OR OTHER ECONOMIC ADVANTAGE, WHETHER OR NOT THE LOSS IS THE RESULT OF MALFUNCTION OF THE SERVICES, AND WHETHER OR NOT GERBER HAS BEEN ADVISED OF THAT POSSIBILITY. GERBER WILL HAVE NO LIABILITY TO CUSTOMER RELATING TO INFRASTRUCTURE OR ARISING FROM OR RELATED TO ANY OTHER THIRD-PARTY EQUIPMENT, SOFTWARE, FACILITIES, SERVICES, INFORMATION OR MATERIALS NOT FURNISHED BY GERBER (INCLUDING ADD-ONS). GERBER WILL NOT BE LIABLE FOR THE ACTS, OMISSIONS AND WORKMANSHIP OF THE EMPLOYEES, CONTRACTORS, AGENTS OR SUPPLIERS OF CUSTOMER. GERBER WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND OR NATURE RESULTING FROM SOFTWARE OR EQUIPMENT WHICH HAVE BEEN MODIFIED WHERE SUCH MODIFICATIONS HAVE BEEN PERFORMED BY A PARTY OTHER THAN GERBER OR MADE BY GERBER AT THE DIRECTION OF CUSTOMER, FROM IMPROPER OR NEGLIGENT USE OR OPERATION OF SERVICES FROM SOFTWAR ALTERED OR REPAIRED BY PERSONNEL OTHER THAN THOSE IN THE EMPLOY OF GERBER OR AUTHORIZED IN WRITING BY GERBER TO REPAIR THE SOFTWARE
13.3 Exceptions
Sections 13.1 and 13.2 do not apply to either party’s: (a) willful misconduct or gross negligence; (b) infringement or misappropriation of any of the other’s Intellectual Property Rights; (c) indemnification obligations; (d) breach of confidentiality; (e) your obligation to pay Fees when due and payable under this Agreement; or (f) liability or loss which may not be limited by applicable law.
13.4 Free Trial
With respect to any free trial, Gerber’s aggregate liability will in no event exceed one hundred US dollars, regardless of any theory of liability, and notwithstanding any provision of this Agreement to the contrary.
14. FEEDBACK
Gerber may collect and use information related to your use of the Services and the Gerber Platform to test, develop, improve and enhance its products and services, as long as such information is not identifiable to you or any individual Permitted User. If you provide Gerber with any feedback on the Services and/or the Gerber Platform, you hereby grant to Gerber and its Affiliates a non-exclusive, transferable, irrevocable, worldwide, royalty-free right (with rights to sublicense) to use the feedback to develop its services and products, including the Services, to create and own derivative works based on the feedback, and otherwise exploit the feedback and any products or services using the feedback.
15. EXPORT CONTROL
15.1 Acknowledgements
You understand and acknowledge that the Services are subject to U.S. export control laws and regulations, including, without limitation, the Export Administration Regulations, 15 C.F.R. 730-774. You further acknowledge and understand that U.S. law prohibits the sale, transfer, export, and re-export of the Services to, or participation in any export transaction involving the Services with, individuals or companies identified on any list of proscribed parties maintained by the U.S. Government, or any other applicable jurisdiction, including Canada, the United Kingdom, and the European Union and its Member States.
15.2 Prohibited Uses and Activities
You will not obtain, retain, use, transfer, or otherwise provide access to the Services to any Affiliate or third-party in a manner that may breach any applicable export control or economic sanctions laws and regulations of any jurisdiction, including the United States, Canada, the United Kingdom, and the European Union and its Members States. You shall not sell, export, re-export, or otherwise transfer or provide, directly or indirectly, the Services to a Proscribed Party or Sanctioned Recipient, even if such party or recipient would otherwise be a Permitted User.
15.3 Warranties
You warrant that neither you nor any Permitted User or Affiliate to which you provide access to the Services is or is affiliated with a Proscribed Party or Sanctioned Recipient, and that, in any transaction related to Gerber, you will not involve Proscribed Parties or Sanctioned Recipients, including through the use of bank accounts that are held by sanctioned parties.
15.4 Right to Prohibit Transactions
You acknowledge and agree that Gerber may prohibit the sale and/or issuance of the Services to individuals and entities if it determines, in its discretion, that such transactions would jeopardize Gerber’s compliance with U.S. laws and regulations.
16. SUBCONTRACTORS
Gerber may use the services of subcontractors for performance of Services under this Agreement, provided that Gerber remains responsible for: (a) compliance of any such subcontractor with the terms of this Agreement; and (b) the overall performance of the Services as required under this Agreement. Gerber shall not enter into any contract, oral or written, with any person, firm or corporation relating to the performance of any additional or other professional services or the supplying of materials or equipment to your premises without your prior written consent.
17. MISCELLANEOUS
17.1 Notices
All notices under this Agreement must be in writing and sent by e-mail (except for notices of breach of this Agreement, which may not be sent by e-mail) or by registered mail, courier or fax, or delivered in person, in each case to the party representative and address set out in the latest Order Form (or such other more recent address notified by one party to the other party); provided that Gerber may give technical and operational notices via your online account or the Gerber Platform.
17.2 Relationship of the parties
The parties are independent contractors. Neither party is an employee, agent, co-venturer or legal representative of the other party for any purpose. Each party shall be solely responsible for the supervision, direction, control and payment of its personnel, including, without limitation, for taxes, deductions and withholdings, compensation and benefits.
17.3 Assignment
You may not assign or otherwise transfer this Agreement or any rights or obligations hereunder without the prior written consent of Gerber. Any other attempted assignment or transfer by you will be void. Nothing herein shall limit Gerber’s right to assign or transfer this Agreement or any rights or obligations hereunder. This Agreement will bind any permitted successors and assigns.
17.4 Entire Agreement
This Agreement contains the entire understanding and agreement between the parties, and supersedes any prior agreements between the parties, in each case with respect to the subject matter hereof. Any use of the term “including” or variations thereof in this Agreement will be construed as if followed by the phrase “without limitation.”
17.5 Precedence
If there is a conflict among any elements of this Agreement, the descending order for precedence will be (unless expressly stated otherwise for any particular terms): an applicable Order Form, any addenda, schedules and exhibits, and the terms and conditions under “General” and Sections 1 through 18 herein.
17.6 Waiver
No term or provision of this Agreement will be deemed waived, and no breach excused, unless such waiver or consent is in a writing that expressly refers to this Agreement and the provision to be waived or the breach to be excused, and that is signed by the party claimed to have waived or consented. No waiver or consent, whether expressed or implied, will constitute a waiver of, consent to or excuse for any other different or subsequent breach.
17.7 Third-Party Benefit
The terms of this Agreement are intended solely for the benefit of each party, and their respective successors and permitted assigns, and there are no intended third-party beneficiaries.
17.8 Severability
If any term or provision of this Agreement is held to be invalid or unenforceable, such term or provision will be ineffective only to the extent of such invalidity or unenforceability, and the remainder of this Agreement will continue in full force and effect.
17.9 Force Majeure
Neither party will be liable for any Losses or failure to perform its obligations under this Agreement, other than with respect to Sections 7 or 12 above, due to circumstances beyond its reasonable control. If such circumstances cause material deficiencies in any Service and continue for more than thirty (30) days, either party may terminate the related Order Form upon written notice to the other party.
17.10 Modifications
We can modify this Agreement at any time, after providing notice to you. By continuing to use the Services after receiving notice that we have modified this Agreement, you agree to such modifications. If you disagree with the modifications, do not continue to use the Services.
17.11 Counterparts
The parties may execute this Agreement in counterparts, including facsimile, PDF and other electronic copies, which taken together will constitute one instrument.
17.11 Governing Law
This Agreement is governed and construed in accordance with the laws of the State of Connecticut without regard to any choice of law principle that would result in the application of another law. Each party agrees that the United States District Court for the District of Connecticut or the Superior Court for the Judicial District of Hartford/New Britain at Hartford, Connecticut shall be the sole and exclusive jurisdiction and venue for the adjudication of any and all disputes between the parties arising hereunder or in connection herewith.
17.12 Security Software
Customer shall have no rights in or to any third-party security software {the "Security Software") incorporated within the Software, except such usage rights as are inevitable in conjunction with its licensed use of the Software. Customer shall have no rights in or to the Security Software as standalone software. All rights in and to the Security Software, including all intellectual property rights reflected therein or embodied thereby, are reserved in their entirety to the third-party licensor of such software (or to such licensor's licensors). Customer may not attempt to access, unlock, reverse engineer, decompile, translate, identify, disassemble, tamper with, isolate, or otherwise attempt to disable or remove, or determine the source code for, the Security Software or any part thereof. The Security Software is provided "AS IS" without warranty of any kind. Customer expressly disclaims all warranties of any kind, express or implied, including, without limitation, implied warranties of merchantability, fitness for a particular purpose, freedom from infringement, or warranties implied through usage of trade or custom of dealing.
Customer shall have no rights with respect to and no claims against the third-party licensor of Security Software and such third-party licensor shall have no liability of any kind, direct or indirect, to Customer arising out of the operation, failure to operate or any other attribute of the Security Software. Gerber shall be the sole point of contact and shall have sole liability to Customer with respect to the Software and any Security Software. The third-party licensor of the Security Software shall be a third-party beneficiary of the terms protecting the confidentiality and intellectual property rights of the Security Software, and of all other restrictions on use and further dissemination of the Software.
Customer shall not use, transport, or distribute, directly or indirectly, any Security Software security elements in violation of any applicable export or import laws, including without limitation those issued by the United States Department of Commerce. The Software includes security elements which support the detection of unauthorized use or copying of the Software and which may report such unauthorized use or copying to Gerber, including possibly the username or email address. By accepting this Agreement, the Customer expressly acknowledges that it understands and accepts the statement and disclosure made in the foregoing Section 17.13.
18. DEFINITIONS
Capitalized terms used herein have the meaning ascribed below, or where such terms are first used, as applicable.
“Acceptable Use Policy” means Gerber’s acceptable use policy attached hereto as Exhibit A and updated by Gerber from time to time,
“Access Credentials” means one or more login identification and password or other means of identification and authentication, or combination thereof, required for a Permitted User to log in or otherwise access the Services.
“Additional Services Support” means additional software maintenance and support services, other than standard Support Services, in connection with the applicable Services as may be purchased by you and provided by Gerber.
“Additional Support Renewal Term” means an additional 12 month period following the end of the Initial Additional Support Term.
“Additional Support Term” means the Initial Additional Support Term and, if renewed, the Additional Support Renewal Term.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, where “control,” for the purposes of this definition, means ownership or control of more than 50% of the voting interests of the subject entity, or the contractual right to establish policy for, and manage the operations of, the subject.
“Aggregated Anonymous Data” has the meaning set forth in Section 3.4.
“Agreement” has the meaning set forth under “General.”
“Cloud Services” means a Gerber software application or platform hosted by Gerber and made available as software-as-a-service on the Gerber Platform.
“Confidential Information” has the meaning set forth in Section 9.1.
“Content” means content and information contained in and made available through the Services, free trial, or pursuant to an Order Form.
“Customer Data” means data and information submitted by or for you to the one or more Services or the Gerber Platform or collected and processed by or for you using use of one or more Services, including messages or files.
“Data Privacy Policy” means Gerber’s data privacy policy available at https://www.lectra.com/en/privacy-policy.
“Data Processing Agreement means the data processing agreement attached hereto as Exhibit B and updated by Gerber from time to time.
“Data Security Standards” means Gerber’s written data security standards attached hereto as Exhibit C and updated by Gerber from time to time.
“Disclosing Party” has the meaning set forth in Section 9.1.
“DPA” has the meaning set forth in Section 1.4.
“EEA” has the meaning set forth in Section 1.4.
“Faults” has the meaning set forth in Section 11.
“Fees” means the fees Gerber charges for making available the Services and other related charges, as specified or referred to in the Order Form or otherwise agreed to by the parties.
“Fix” has the meaning set forth in Section 2.6.4.
“Gerber” means Gerber Technology LLC with a place of business at 24 Industrial Park Road West, Tolland, CT 06084 USA.
“Gerber Marks” has the meaning set forth in Section 5.
“Gerber Materials” has the meaning set forth in Section 5.
“Gerber Platform” means any platform, system or technology that Gerber owns or controls and makes available to you under this Agreement for the purpose of accessing the Services as specified in the applicable Order Form, together with any materials and functionality available therein, and any successor platform(s) thereto.
“Infrastructure” has the meaning set forth in Section 1.2.
“Initial Additional Support Term” means the initial 12 month period for the Additional Services Support purchased by you.
“Installed Software” means the Gerber software set forth in the Order form and made available for installation and use on your premises. The term “Installed Software” includes all Fixes and New Versions issued to you under this Agreement.
“Intellectual Property Rights” means all trade secrets, patents and patent applications, trademarks (whether registered or unregistered and including any goodwill acquired in such trademarks), service marks, trade names, copyrights, moral rights, database rights, design rights, rights in know-how, rights in Confidential Information, rights in inventions (whether patentable or not) and all other intellectual property and proprietary rights (whether registered or unregistered, any application for the foregoing, and all rights to enforce the foregoing), and all other equivalent or similar rights which may subsist anywhere in the world.
“Losses” has the meaning set forth in Section 12.1.
“Malicious Code” means: (a) any code, program, or sub-program, the knowing or intended purpose or effect of which is to damage or maliciously interfere with the operation of a computer system containing the code, program or sub-program, or to halt, disable, or interfere with the operation of the software, code, program, or sub-program, itself; or (b) any device, method, or token that permits any person to circumvent without authorization the normal security of Services, any Software or Gerber Platform containing the code.
“New Version” has the meaning set forth in Section 2.6.5.
“Order Form” means the ordering document or online order specifying the Services to be provided hereunder that is entered into between you and Gerber, including any addenda and supplements thereto.
“Permitted User” means you, if you are an individual, or your employees, consultants and agents providing services to you if you are a company, up to the number of users who are authorized to use the Services under an Order Form.
“Proscribed Party” means any individual or entity listed as a proscribed party under U.S. laws and regulations or any other applicable jurisdiction, including, without limitation, Canada, the United Kingdom, the European Union, and any of its Member States.
“Receiving Party” has the meaning set forth in Section 9.1.
“Representatives” has the meaning set forth in Section 9.2.
“Reseller” means a third-party authorized by Gerber to promote and resell the Services.
“Sanctioned Recipient” means any individual or entity domiciled, organized, or located in a country that has been sanctioned by the U.S. Government or any other applicable jurisdiction, including, without limitation, Cuba, the Crimea Region of Ukraine, Iran, North Korea, and Syria, or to any other restricted/embargoed country as may be designated from time to time by the U.S. Government or other applicable jurisdiction.
“Security Software” has the meaning set forth in Section 17.13.
“Services” means the Installed Software and Cloud Services, as applicable.
“Services Support Contract” means the contract governing your purchase, and Gerber’s provision to you, of the Additional Services Support.
“Service Version” means any version of the applicable Services provided by Gerber to you under this Agreement.
“Software” means any software underlying the Services.
“Storage Period” has the meaning set forth in Section 8.5.3.
“Subscription” means your right, for a fixed period of time, to possess, use and/or access, the applicable Services, and if applicable, to receive associated Support Services.
“Subscription Term” means the period of time for which a Subscription is valid, as further described in Section 8.2 of this Agreement.
“Support Services” means the standard maintenance and support services for the applicable Services, if any, that are included in a Subscription as determined by Gerber from time to time.
“Third-Party Services” has the meaning set forth in Section 2.9.
“Third-Party Terms” has the meaning set forth in Section 2.9.
Rev. September 2023