§12.1 Publicity. Client hereby grants FOEX permission to distribute press releases upon the Agreements. Such publicity may appear in business or trade publications, FOEX publications, and/or on the FOEX web site. Client will provide FOEX with a company logo for use in such published materials. Any published material will be subject to Client's consent to both content and timing, such consent not to be unreasonably withheld or delayed; provided, however, that Client grants FOEX the right to include Client's name in FOEX's published client list without the need for Client's consent. Notwithstanding anything to the contrary, to the extent that FOEX may have a legal obligation to announce any material contracts, Client agrees that FOEX will announce the execution of the Agreements, without the need for Client's consent.
§12.2 Non-Hiring. During the term of the Agreements, and for a period of 12 months after termination hereof, Client shall refrain from directly or indirectly, knowingly solicit, hire or otherwise retain, as an employee, consultant or independent contractor, any employee of FOEX, within one year of the employee leaving the employ of FOEX, unless previously agreed in writing by FOEX.
§12.3 Assignment. Client shall not have the right to assign or transfer, in whole or in part, the Agreements, without FOEX's prior written consent, which shall not be unreasonably withheld, except in the event of the sale of all or substantially all of Client's assets or shares by way of merger or acquisition, in which case FOEX's consent shall not be required. Client acknowledges that in the event of the transfer of any third party licenses, Client and/or its assignee may be required to pay license fees to such third party(ies).
§12.4 Entire Agreement. The Agreements comprises the entire agreement between the Parties relating to the subject matter hereof. The Agreements supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of the Agreements. The Agreements may not be modified or amended except in writing signed by a duly authorized representative of each party; no other act, document, usage, or custom shall be deemed to amend or modify the Agreements. In the event of any inconsistencies between the Agreements and any schedules hereto, the schedules shall prevail.
§12.5 Independent Contractors. The relationship of the Parties hereunder shall be that of independent contractors. Nothing in the Agreements shall be construed to constitute a partnership between or joint venture of the Parties, nor shall either Party be deemed the agent of the other Party or have the right to bind the other Party in any way without the prior written consent of such Party, except as specifically provided in the Agreements.
§12.6 Waiver. No term or provision of the Agreements shall be deemed waived and no breach excused unless such waiver or consent is in writing and signed by the Party that has given such waiver or excused such breach.
§12.7 Governing Law. The Agreements shall be governed by and construed in accordance with the law of Austria. Exclusive jurisdiction for any action arising out of or in conjunction with the Agreements shall be in the courts of Austria.
§12.8 Force Majeure. In the event that either Party hereto shall be delayed or hindered or prevented from the performance of any act required hereunder, other than a payment obligation, by reason of strikes, lock-outs, labor troubles, inability to procure materials or services, failure of power, riots, insurrection, war or other reasons of a like nature not the fault of the party delayed in performing work or doing acts required under the terms of the Agreements, such Party shall immediately provide notice to the other Party of such delay, and performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay.
§12.9 Notices. Any notice, request or other communication to be given under the Agreements may be delivered or sent by certified mail, registered mail, or courier, or by e-mail or facsimile transmission to the other party to be delivered at its address appearing in the Agreements, or in the event that another address is notified in writing to the other Party in accordance with this § 12.9, then to that other address; provided that a paper copy of any communication which is sent by e-mail or facsimile transmission is also sent by certified mail, registered mail, or courier, within one business day of the e-mail or facsimile transmission having been sent. Any such notice or document shall be deemed to have been delivered:
(a) if delivered personally, at the time of delivery;
(b) if mailed, by certified or registered mail, at 10:00 a.m. on the second business day after it was mailed; or
(c) if sent by e-mail or facsimile transmission, on the Business Day when dispatched; provided that a paper copy was also sent in accordance with the provision above and provided that any notice which was dispatched or delivered or deemed to be delivered on a day which is not a business day, or after 4:00 P.M. (local time of recipient), shall be treated as delivered on the next business day.
§12.10 Severability. If any provision of the Agreements is held invalid or unenforceable by any court or agency of competent jurisdiction, the Parties shall mutually agree on an alternate, legally valid and enforceable provision. The remainder of the Agreements shall nevertheless continue in full force and effect to the extent that continued operation under the Agreements without the invalid or unenforceable provision is consistent with the intent of the parties as expressed in the Agreements.
§12.11 Currency. All references to currency in the Agreements or any Related Agreement shall be deemed to be in Euros, unless otherwise stipulated.
§12.12 Taxes. Client shall pay any federal, state, county or local sales, property, investment, use and/or other applicable taxes arising out of Client's acquisition of the services of FOEX under the Agreements, except any taxes on FOEX's income, whenever imposed. Upon request of FOEX, Client shall obtain and provide to FOEX any certificate of exemption or similar document required to exempt Client from any such tax liability. In the event that
(a) any taxes are paid by FOEX on behalf of Client;
(b) FOEX has received payment therefore from Client; and
(c) it is thereafter determined that Client may be entitled to a refund of any such taxes, or a portion thereof,
then FOEX shall file the appropriate documents to receive such refund at Client's request, and FOEX shall pay such refund to Client upon receipt of such refund.
§12.13 Execution in Counterparts. The Agreements may be executed in several counterparts, each of which shall be deemed to be an original, and all of which, when taken together, shall constitute one and the same instrument.
|Additional Support and Maintenance
||Additional Support and Maintenance Services means the services provided by FOEX pursuant to Schedule § 4.2(b)
||Documentation means all user manuals and other documentation relating to the Software and supplied by FOEX to Client whether provided in electronic form or otherwise, including training manuals, program listings, data models, flow charts, logic diagrams, functional specifications, instructions, etc.
||Forum means a public online forum provided and pursued by FOEX and accessible under http://forum.tryfoexnow.com/osqa.
||Metrics means the various measurements used for pricing of the Software as a Service as set forth in the SaaS Agreement.
||Software has the meaning assigned thereto in Schedule § 2.1(a)
|Software as a Service
||Software as a Service means the services provided by FOEX pursuant to this GT Agreement in exchange for the SaaS Fees, including (i) Client's access to the Software; (ii) the licenses granted by FOEX in respect of the Software as set forth in Schedule § 2.1(a), and (iii) the Basic Support, the whole as set forth herein.
||Subscriptions means all of the subscriptions for the Software as a Service purchased by Client from time to time.
||Territory means all countries.
||Third Party means a supplier whose software is licensed for distribution by FOEX to be sublicensed by FOEX to its clients and/or a supplier subcontracted by FOEX to provide services.
|Third Party Software
||Third Party Software means all software owned by a Third Party, but licensed for distribution by FOEX as part of the Software as a Service.
||Virus means any thing or device, including any software, code, file or program, which may (i) prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; (ii) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data, whether by re-arranging, altering or erasing the program or data in whole or in part or otherwise, or (iii) adversely affect the user experience, including worms, trojan horses, malicious code, files, scripts, agents, or programmed viruses or other similar things or devices.
1.1. “Error” means
1.1.1. any failure of the Software, or any portion thereof, to (i) comply with all applicable laws, (ii) meet the Functional Specifications, (iii) function and perform in conformance with the Documentation; or
1.1.2. any other occurrence that renders the Software unavailable for use or deficient in its operation.
1.2. “Functional Specifications” means the features, functionality, configuration and other specifications and requirements for the Software that are set forth in the Documentation.
1.3. “Permanent Correction” means a resolution of an Error that completely and permanently remedies such Error without any degradation of performance or loss of functionality.
1.4. “Severity 1 Error” means any Error that renders the Software or any material portion thereof inoperative, or materially impairs Client's use of the Software in a production environment.
1.5. “Severity 2 Error” means any Error that substantially impairs Client's use of one or more features or functions of the Software, which constitute less than a material portion thereof, in a production environment, or any Error occurring in a testing or other non-production environment that, if occurring in a production environment, would constitute a Severity 1 Error.
1.6. “Severity 3 Error” means any Error that has minimal impact on the performance or operation of the Software.
1.7. “Updates” means any Error correction, bug fix, patch, enhancement, update, upgrade, new version, release, revision or other modification to the Software provided or made available by FOEX to its licensees.
1.8. “Work Around” means a resolution, fix, or procedural change with respect to an Error that
1.8.1. remedies or circumvents such Error on a temporary basis pending a Permanent Correction;
1.8.2. causes the Software to operate without any loss of functionality or material degradation of performance; and
1.8.3. is reasonably acceptable to Client.
1.9. "Maintenance Credit" means a measuring unit for the cost of Maintenance Services. Client may purchase Maintenance Credits in accordance with § 4.2(a). The received Maintenance Credits are valid for a 12-month period. During this period Maintenance Credits may be used by Client as required for Maintenance Services. Maintenance Credits are non-assignable.
2. Maintenance Services. FOEX shall provide Client the following Maintenance Services:
2.1. Error Notification. Client may report any Error to FOEX through a post in the Forum
2.2. Error Response. If (i) Client purchased an additional SLA; and (ii) upon notification by Client of an Error; FOEX shall provide an initial response (the “Initial Response”), within the timeframes set forth in the chart in the SaaS Agreement. The Initial Response from FOEX shall include, as applicable
2.2.1. FOEX's acknowledgment or notification to Client of such Error;
2.2.2. the classification of such Error as either a Severity 1, 2, or 3 Error; and
2.2.2. FOEX's specific action plan for addressing and resolving the Error, including a good faith estimate on how long it will take FOEX to provide a Work Around and Permanent Correction and how many Maintenance Credits it will cost. Moreover, FOEX shall provide Client with updates to the status of FOEX's efforts (the “Status Updates”) in the Forum from time to time.
2.3. Technical Support. FOEX shall provide telephone, email and web-based technical support, troubleshooting, Error identification, isolation and remediation, and other assistance directly to Client and its users to support Client's use, deployment and validation of the Software every business day from 9:00 a.m. to 5:00 p.m. CET.
2.4. Software Updates. FOEX shall provide Client all Updates to the Software, including all related Documentation, to the extent and no later than when made generally available to FOEX's other customers. FOEX shall provide all Updates free of charge during each Term. FOEX shall provide Software Support and Maintenance Service for all Updates.
2.5. Back-Version Support. Client shall have the right to install, or not to install, any Update in its sole discretion; provided, however, that Client shall cooperate with FOEX to install applicable Work Arounds and Permanent Corrections. Subject to the foregoing, FOEX shall provide Additional Support and Maintenance Service to Client for the Software releases as set forth in Section "Back-Version Support" on the Website. The Section "Back-Version Support" of the Website becomes part of the Agreements thereafter.
3. "Use of Maintenance Credits". Client may use the Maintenance Credits for the different Maintenance Services defined in Section 2. Every Technical Support request, except an Error Notification, costs one Maintenance Credit. The respond on such a request shall include a good faith estimate on how long it will take FOEX to provide a Work Around and Permanent Correction and how many Maintenance Credits it will cost.