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IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE SUBSCRIBING TO THE SERVICE DESK FROM JABATIX S.A.

This service desk agreement (Service Desk Agreement) or (Agreement) is a legal agreement between the Customer (or you) and Jabatix S.A., a company registered in the Grand Duchy of Luxembourg under number B 91815, whose registered office is at 1a, op der Ahlkerrech, L-6776 Grevenmacher, Luxembourg (JABATIX) (or we) for the provision of support and maintenance services (Services) for the JABATIX Community Edition in accordance with section 1. If you are agreeing to this Service Desk Agreement not as an individual but on behalf of your company, then “Customer” or “you” means your company, and you are binding your company to this Service Desk Agreement. JABATIX may modify this Agreement from time to time, subject to the terms in section 10 (Notices & Changes) below.

By clicking on the “I agree” or “I accept” (or any similar button) that is presented to you at the time of your order or registration, or by using or accessing the JABATIX Customer Edition, you indicate your assent to be bound by this Agreement.

BY PROCEEDING TO REGISTER FOR THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT WHICH WILL BIND YOU AND YOUR EMPLOYEES. ANY SERVICES THAT JABATIX PROVIDES ARE UNDERTAKEN ON A BEST-EFFORTS BASIS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, WE ARE UNWILLING TO PROVIDE THE SERVICES TO YOU AND YOU MUST DISCONTINUE THE REGISTRATION OR ORDER PROCESS NOW. IN THIS CASE THE REGISTRATION OR ORDER PROCESS WILL TERMINATE.

1.   SCOPE

1.1   This Agreement governs your initial order as well as any future orders made by you that reference this Agreement. You may need to register for an account with JABATIX in order to place orders or access or receive Services. Any registration information that you provide to JABATIX must be accurate, current and complete. You must also update your information so that we may send notices, statements and other information to you by email or through your account. You are responsible for all actions taken through your account.

1.2   Subject to the terms and conditions of this Agreement, JABATIX grants to you a non-exclusive right to access and use a mandatory platform for support requests which manages ticket ownership, ensures traceability and which statements are binding for the parties (Service Desk) during the applicable Subscription Term (as defined below) in accordance with this Agreement and your applicable scope as described herein. You are aware of and acknowledge that the Service Desk is an online, subscription-based service and that JABATIX may make changes to the Service Desk from time to time.

1.3   JABATIX will provide the Services for the JABATIX Customer Edition as described herein during the Subscription Term for which you have paid the applicable fee (Service Fee). Services may be subject to the terms as further describe on the website and/or specified in your order. The terms on the website may be modified by JABATIX from time to time to reflect process improvements or changing practices. Services include services for raising:

     a.   a bug;

     b.   a service request;

     c.   a support request;

     d.   an enhancement.

1.4   Subject to the aforementioned JABATIX shall process twelve (12) service requests of Customer within reasonable time during the Subscription Term as part of the Services without guaranteeing a response or resolution time. Notwithstanding, Customer will have 24 hours access to the Service Desk (apart from technical downtime). JABATIX shall evaluate all submitted bugs and fix errors in a subsequent version or release or suggest a workaround if commercially reasonably viable.

1.5   JABATIX will submit fair and reasonable quotations for service requests lodged by the Customer that are in excess of the amount referred to in section 1.4 above or which pertain to services explicitly excluded as per section 1.7 below. However, during the Subscription Term and as part of the Services the Customer is entitled to two (2) direct “face-to-face” interactions with JABATIX via a web-based system or service such as Skype or Teamviewer or via e-mail for problem resolution.

1.6   JABATIX shall reasonably investigate any requested enhancements by Customer and if commercially reasonably viable and in line with JABATIX’s offering and product strategy implement such requests. Notwithstanding, JABATIX will pro-actively inform Customer about patches and further developments.

1.7   The following services are explicitly excluded from the Services, but may be provided through and invoiced by JABATIX if Customer lodges a separate service request:

     a.   software adaptation, modification or parameter resets supplied or operated at the specific request of the Customer;

     b.   installation and test of new software releases in Customer’s environments;

          1.  any site visit conducted by JABATIX;

          2.  diagnosing and cleansing spyware and/or viruses from a PC (other than as a result of a breach by JABATIX);

          3.  training current or future employees of the Customer.

2.   CHARGES & PAYMENT

2.1   The total price (Service Fee) for the Services shall be the amount set out in the order or invoice.

2.2   Unless otherwise specified in the Agreement, the price for the Services excludes:

     a.   VAT, which JABATIX shall add to its invoices at the appropriate rate; and

     b.   custom duties and other governmental assessments related to or resulting from the Agreement, which JABATIX shall add to its invoices at the appropriate rate.

2.3   The Customer shall pay each invoice submitted to it by JABATIX in full, and in cleared funds, within fifteen (15) days of receipt.

2.4   Without prejudice to any other right or remedy that JABATIX may have, if the Customer fails to pay JABATIX on the due date JABATIX may:

     a.   charge interest on such sum from the due date for payment at the rate of 1.5% per month and being compounded monthly until payment is made, whether before or after any judgment and without prejudice to JABATIX's right to claim interest under the applicable law; and

     b.   suspend all Services until payment has been made in full.

2.5   All Service Fees are non-refundable. JABATIX may on notice to the Customer increase the Service Fees payable under the Agreement by the same proportion as any average increase in the Luxembourg retail price index over the 12 month period preceding the date of such notice, such increase to be effective from the next anniversary of the Effective Date following the service of such notice as per section 9 below.

3.   CUSTOMER’S UNDERTAKINGS

3.1   Except as expressly set out in this Agreement or as permitted by any local law, you undertake:

     a.   to ensure that only the specific individuals for whom you have paid the required fees and whom you designate for the services (Authorized Users) may access and use the Service Desk;

     b.   to ensure that all Authorized Users keep their user IDs and passwords for the Service Desk strictly confidential and not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify JABATIX of any unauthorized use of which you become aware;

     c.   to supervise and control that the Service Desk is used by your employees and representatives in accordance with the terms of this Agreement;

     d.   to obtain all necessary licences and permits including, without limitation, all software licences (if any) to enable JABATIX to provide the Services.

4.   REGISTRATION

Upon registration JABATIX may provide a scheme which provides a number of benefits including access to updates and customer or partner information. With your registration, you agree to receive customer and partner updates or other related information via e-mail.

5.   DATA & SECURITY

5.1   You will retain all right, title and interest in and to any data, content, code, or other materials of any type that you upload, submit or otherwise transmit to or through the Service Desk (Your Data). Subject to the terms of this Agreement, you hereby grant to JABATIX a non-exclusive, worldwide, royalty-free right to (a) collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case solely to the extent necessary to provide the Services to you and (b) for the Service Desk that enable you to share Your Data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorized Users) direct or enable through the Service Desk. JABATIX may also access your account in order to respond to your support requests.

5.2   JABATIX implements security procedures to help protect Your Data from security attacks. However, you understand that use of the Service Desk necessarily involves transmission of Your Data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers.

5.3   You must ensure that your use of the Service Desk and all Your Data is at all times compliant with all applicable laws and regulations (Laws). You represent and warrant that: (a) you have obtained all necessary rights, releases and permissions to provide all Your Data to JABATIX and to grant the rights granted to JABATIX in this Agreement and (b) Your Data and its transfer to and use by JABATIX as authorized by you under this Agreement do not violate any Laws (including without limitation those relating to export control and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies. Other than its security obligations under section 5.2, JABATIX assumes no responsibility or liability for Your Data, and you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it.

5.4   You will not upload or submit to the Service Desk (or use the Service Desk to collect any personally identifiable information, except as necessary for the establishment of your JABATIX account.

5.5   JABATIX has no obligation to monitor any content uploaded or submitted to the Service Desk. Nonetheless, if we deem such action necessary based on your violation of this Agreement or in response to takedown requests that we receive, we may (a) remove Your Data from the Service Desk or (b) suspend your access to the Service Desk. We will generally strive to alert you when we take such action and give you a reasonable opportunity to cure your breach, but if we determine that your actions endanger the operation of the Service Desk, other users or can be deemed to either damage the reputation of JABATIX or implicate JABATIX in a negative or criminal way, we may suspend your access immediately without notice. You will continue to be charged for the Service Desk during any suspension period. We have no liability to you for removing or deleting Your Data from or suspending your access to the Service Desk as described in this section.

6.   DISCLAIMER OF WARRANTIES

6.1   JABATIX DOES NOT WARRANT THAT YOUR ACTIVITIES OR USE OF THE SERVICES AND SERVICE DESK IS LAWFUL IN ANY PARTICULAR JURISDICTION AND, IN ANY EVENT, JABATIX SPECIFICALLY DISCLAIMS SUCH WARRANTIES. YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THE SERVICES AND SERVICE DESK, YOU ACT AT YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE DESK OR THE SERVICES. FURTHER, JABATIX AND ITS SUBSIDIARIES AND AFFILIATES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE. JABATIX, ITS PARENT, SUBSIDIARIES OR AFFILIATES OR THE DIRECTORS, OFFICERS, EMPLOYEES, OR OTHER REPRESENTATIVES OF EACH OF THEM SHALL NOT BE LIABLE FOR THE USE OF THE SERVICES INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED THEREIN. SOME JURISDICTIONS MAY LIMIT OR MAY NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT THAT SUCH JURISDICTION’S LAW IS APPLICABLE TO THIS AGREEMENT.

6.2   You acknowledge that the Services may contain test data and has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Services as described in the Documentation meet your requirements

7.   DISCLAIMER AND LIMITATION OF JABATIX'S LIABILITY

7.1   Nothing in this Agreement shall limit or exclude the liability of either party for death or personal injury resulting from negligence, fraud, fraudulent misrepresentation, or deliberate personal repudiatory breaches of this agreement.

7.2   Notwithstanding section 7.1 above; you understand and agree that JABATIX limits its liability in connection with your use of the Services as follows: UNDER NO CIRCUMSTANCES SHALL JABATIX, ITS PARENT, SUBSIDIARIES, OR AFFILIATES OR THE DIRECTORS, OFFICERS, EMPLOYEES, OR OTHER REPRESENTATIVES OF EACH OF THEM (JABATIX AND INDIVIDUALS) BE LIABLE TO YOU FOR ANY LOSS OR DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, FOR ANY SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, ECONOMIC OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO (1) THE SERVICE DESK, THE CONTENT OR SERVICES; (2) THE USE OF, INABILITY TO USE, OR PERFORMANCE OF THE SERVICES; (3) ANY ACTION TAKEN IN CONNECTION WITH RESPECTIVE SERVICES; (4) ANY ERRORS OR OMISSIONS IN THE TECHNICAL OPERATION OF THE SERVICES, EVEN IF FORESEEABLE OR EVEN IF JABATIX AND INDIVIDUALS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR DESTRUCTION OF THE SERVICES). IN NO EVENT SHALL JABATIX’s AND INDIVIDUALS TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION EXCEED 100 % OF THE POTENTIAL SINGLE AGREEMENT FEE PAID AT ARM’S LENGTH CONDITIONS. JABATIX ENTITIES AND INDIVIDUALS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO ANY USER’S COMPUTER, MOBILE PHONE, HARDWARE, SERVICES, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION. YOUR ACCESS TO AND USE OF THIS SERVICES IS AT YOUR RISK. YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE SERVICE DESK AND SERVICES. YOU RECOGNISE AND CONFIRM THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF JABATIX’S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY SERVICE DESK, PROPERTY, PRODUCT, PROGRAM, TELEVISION SHOW, OR OTHER AUDIO/VISUAL CONTENT OWNED OR CONTROLLED BY JABATIX AND/OR ITS PARENTS, SUBSIDIARIES, AND/OR AFFILIATES AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY JABATIX-SERVICES SERVICE DESK, PROPERTY, PRODUCT, PROGRAM, TELEVISION SHOW OR OTHER AUDIO/VISUAL CONTENT OR ANY AND ALL ACTIVITIES OR ACTIONS RELATED THERETO.

7.3   The Customer agrees that the use of the Services is not a substitute for the exercise of commercial or professional judgment and that operation of the Services might not be uninterrupted or error-free. Accordingly, subject to the above, JABATIX shall not be liable for any liability, or losses resulting, whether directly or indirectly, from the commercial exploitation of any results, reports, data or other outputs of the Services. Notwithstanding the aforementioned, JABATIX’s total liability shall be limited to € 2.000,00 (two thousand) for damages under this agreement (including damages subject to section 7.1), unlawful acts, (including negligence or violation of legal regulations), false statements, reimbursements or otherwise that are related to the implementation or intended implementation of this agreement.

7.4.   This Agreement sets out the full extent of JABATIX’s obligations and liabilities in respect of the supply of the Services and Documentation. In particular, there are no conditions, warranties, representations or other terms, express or implied, that are binding on JABATIX except as specifically stated in this Agreement. Any condition, warranty, representation or other term concerning the supply of the Services and documentation which might otherwise be implied into, or incorporated in, this Agreement, or any collateral contract, whether by statute, applicable law or otherwise, is hereby excluded to the fullest extent permitted by law.

8.   TERM AND TERMINATION

8.1   Subject to section 8.2, this Agreement (and the rights granted herein) shall commence on the date on which you register for the Service Desk on the website of JABATIX (Effective Date) and shall continue for the period of one (1) year (Subscription Term).

8.2.   Upon expiration of the Initial Term and payment of the additional Service Fee the Agreement shall renew automatically for a further 12-month period (Renewal Term) with each party being able to terminate the Services at any time on giving not less than 6 months prior written notice to the other expiring on the next anniversary date. If no notice of termination is given 6 months or more prior to an anniversary date, the Agreement shall renew automatically for a further 12-month period. JABATIX may terminate this Agreement immediately and without notice to you if:

     a.   you commit a material or persistent breach of this Agreement; or

     b.   a petition for a bankruptcy order to be made against you has been presented to the court; or

     c.   the Customer (where it is a company) becomes insolvent or unable to pay its debts, enters into liquidation, whether voluntary or compulsory (other than for reasons of bona fide amalgamation or reconstruction), passes a resolution for its winding-up, has a receiver or administrator manager, trustee, liquidator or similar officer appointed over the whole or any part of its assets, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt, unable to pay your debts.

8.3   Upon termination for any reason:

     a.   all rights granted to you under this Agreement shall cease;

     b.   you must cease all activities authorized by this Agreement;

     c.   we may remove or delete Your Data within a reasonable period of time.

9.   TRANSFER OF RIGHTS AND OBLIGATIONS

9.1   This Agreement is binding on you and JABATIX, and on our respective successors and assigns. 

9.2   You may not transfer, assign, charge or otherwise dispose of this Agreement, or any of your rights or obligations arising under it, without JABATIX’s prior written consent.

9.3   JABATIX may transfer, assign, charge, sub-contract or otherwise dispose of this Agreement, or any of JABATIX’s rights or obligations arising under it, at any time during the term of the Agreement.

10.   NOTICES AND CHANGES

10.1   All notices given by you to JABATIX must be given to JABATIX S.A., a company registered in the Grand Duchy of Luxembourg under number B 91815 and with headquarters at 1a, op der Ahlkerrech, L-6776 Grevenmacher, Luxembourg. JABATIX may give notice to you at either the e-mail or postal address you provided to JABATIX or our representative when registering for the Services. Notice will be deemed received and properly served immediately when posted on our website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail that such e-mail was sent to the specified e-mail address of the addressee.

10.2   We may update or modify this Agreement from time to time, including any referenced policies and other documents. If a revision meaningfully reduces your rights, we will use reasonable efforts to notify you as per section 10.1 above or in addition by postings on our website, through your JABATIX account, or on the Service Desk itself). If we modify the Agreement during your Subscription Term, the modified version will be effective upon your next renewal of a Subscription Term, as applicable. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew.

11.   EVENTS OUTSIDE OUR CONTROL

11.1   JABATIX will not be liable or responsible for any failure to perform, or delay in performance of, any of JABATIX’s obligations under this Agreement that is caused by events outside JABATIX’s reasonable control (Force Majeure event). 

11.2   A Force Majeure event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:

     a.   strikes, lock-outs or other industrial action;

     b.   civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;

     c.   fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;

     d.   impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;

     e.   impossibility of the use of public or private telecommunications networks;

     f.   the acts, decrees, legislation, regulations or restrictions of any government.

11.3   JABATIX’s performance under this Agreement is deemed to be suspended for the period that the Force Majeure event continues.

12.   WAIVER

12.1   If JABATIX fails, at any time during the term of this Agreement, to insist upon strict performance of any of your obligations under this Agreement, or if we fail to exercise any of the rights or remedies to which we are entitled under this Agreement, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.

12.2   A waiver by JABATIX of any default shall not constitute a waiver of any subsequent default.

12.3   No waiver by JABATIX of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.

13.   SEVERABILITY

If any of the terms of this Agreement are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.

14.   ENTIRE AGREEMENT

14.1   This Agreement and any document expressly referred to in it represents the entire agreement between JABATIX in relation to the licensing of the Services and Documentation and supersedes any prior agreement, understanding or arrangement between JABATIX, whether orally or in writing.

14.2   You acknowledge that, in entering into this Agreement, you have not relied on any representation, undertaking or promise given by JABATIX or be implied from anything said or written in negotiations between JABATIX and you prior to entering into this Agreement except as expressly stated in this Agreement.

14.3   You shall have no remedy in respect of any untrue statement made by JABATIX, whether orally or in writing, prior to the date you entered into this Agreement (unless such untrue statement was made fraudulently) and your only remedy shall be as provided in these terms and conditions.

15.   LAW AND JURISDICTION

15.1   This Agreement and the interpretation of this Agreement shall be governed and construed in accordance with the Laws of the Grand Duchy of Luxembourg, without regard to its conflicts of laws rules and specifically will not be governed by the United Nations Conventions on Contracts for the International Sale of Goods, if otherwise applicable.

15.2   The parties shall use their best efforts to negotiate in good faith and settle amicably any dispute arising out of or in connection with this agreement. 

15.3   No party may commence any court proceedings in relation to any dispute arising out of or in connection with this agreement until it has attempted to settle the dispute by mediation, provided that the right to issue proceedings is not prejudiced by a delay.

15.4   In the event that a dispute is not capable of amicable resolution in good faith then the parties agree that the dispute may be referred by a party to the courts of the Grand Duchy of Luxembourg which shall have final, exclusive and irrevocable jurisdiction to hear and decide any suit, action or proceedings, and/or to settle any disputes, which may arise out of or in connection with this agreement or its formation or validity (including non-contractual disputes or claims) and, for these purposes, each party irrevocably submits to the exclusive jurisdiction of the courts of the Grand Duchy of Luxembourg.

16.   CONFIDENTIAL INFORMATION

16.1   The disclosure of confidential and proprietary information hereunder shall be governed by the terms and conditions of this section 16.

16.2   The disclosure of confidential and proprietary information hereunder shall pertain to the consideration of a business relationship or transaction between JABATIX and the Customer, and any resulting relationship or transaction, but not a recipient’s use outside of such relationship (Permitted Purpose).

16.3   All information disclosed (a) to a recipient by a discloser hereunder or any of discloser’s suppliers, employees, contractors or customers; (b) in writing or by way of any other media or orally or visually; and (c) in such a manner that a reasonable person would understand that such information is confidential; except any portion thereof that a recipient can clearly demonstrate (d) as known to that recipient before receipt thereof under this agreement; (e) is disclosed to that recipient by a third person who has a right to make such disclosure without an obligation of confidentiality; or (f) enters the public domain through no act or default on the part of that recipient; provided that only the specific information that meets the exclusions shall be excluded, and not any other information that happens to appear in proximity to such excluded portions (for example, a portion of a document may be excluded without affecting the confidential nature of those portions that do not themselves qualify for exclusion) (Confidential Information).

16.4   Subject to all of the terms and conditions of this section 16, both, JABATIX and the Customer, are willing to disclose certain Confidential Information to the other solely for the Permitted Purpose. Each of the parties hereto represents and warrants that it is authorised to disclose any and all Confidential Information made available to the other party pursuant to this agreement.

16.5   Each recipient agrees (a) to keep secret and maintain the Confidential Information as confidential and to hold the Confidential Information in trust for the exclusive benefit of discloser; (b) to use the Confidential Information solely for the Permitted Purpose; (c) to segregate the Confidential Information from that recipient’s other information and that of third parties; (d) not to copy, disassemble or reverse engineer the Confidential Information; (e) to notify promptly discloser upon learning about any court order or other legal requirement that purports to compel disclosure of any Confidential Information and to cooperate with discloser in the exercise of discloser’s right to protect the confidentiality of the Confidential Information before any tribunal or governmental agency; (f) not to disclose the Confidential Information to any person or entity not a party to this Agreement other than such of that recipient’s employees or contractors who (i) have a need to know the Confidential Information for the Permitted Purpose; (ii) are apprised of the confidential nature of the Confidential Information; and (iii) execute a confidentiality agreement restricting disclosure of the Confidential Information in a manner consistent with the provisions of this agreement, provided that the recipient shall be responsible for breaches of this agreement by its employees and contractors; (g) to exercise all reasonable precautions to prevent unauthorised access to the Confidential Information (including without limitation, all precautions the recipient employs with respect to its confidential materials); and (h) to return promptly to discloser at any time upon discloser’s request, any and all materials pertaining to or containing any information. For the purpose of this section 16, the Services, related Documentation, test data and deposit materials shall be deemed to be the Confidential Information of JABATIX.

16.6   All of discloser’s rights in and to the information disclosed hereunder by it shall remain the exclusive property of discloser and neither this section 16, nor any disclosure of Information hereunder, in any way (a) grants to a recipient any right or Agreement under any copyright, patent, mask work or trademark now or hereafter owned or controlled by discloser, except solely for the Permitted Purpose; (b) obligates either party to disclose or receive any information, perform any work, enter into any Agreement, business engagement or other agreement; (c) creates any joint relationship or authorises either party to act or speak on behalf of the other; or (d) limits either party from entering into any business relationship with any third party.

17.   INDEMNITY

You agree to defend, indemnify and hold harmless JABATIX and its subsidiaries, individuals with respect to any and all costs, claims, demands, investigations, liabilities, losses, damages, judgments, settlements, costs and expenses, including solicitors’ fees arising out of or in connection with this Agreement, including, without limitation: (a) your use of the Services; (b) your violation of these Agreement or any law, rule or regulation; or (c) your use of this website. You will cooperate as fully and reasonably as required by JABATIX in the defence of any claim. Notwithstanding the foregoing, JABATIX retains the exclusive right to settle, compromise and pay any and all claims, demands, proceedings, suits, actions or causes of actions which are brought against JABATIX herein under the terms and provisions of this section 17 and in no event, shall you settle any such claim without JABATIX’s prior written approval.

Version: 8 March 2017


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