TERMS AND CONDITIONS FOR USE OF SERVICE
(A) Konduko has developed software applications, hardware devices and a platform which it makes available to subscribers via the internet on a pay-per-use basis for the purpose of connecting its Customer with Visitors at their Trade Show.
(B) The Customer wishes to use Konduko’s service in its business operations.
(C) Konduko has agreed to provide and the Customer has agreed to take and pay for Konduko’s service subject to Konduko’s general terms and conditions.
- DESCRIPTION OF SERVICE
1.1 Konduko allows its Customers to interact with Visitors of a Trade Show to support business opportunities by sending information electronically to a central platform. Such information can include general product information, offers, images, documents and other forms of marketing materials. In return, the Visitors provide personal details for the use of the Customer in establishing or maintaining an ongoing business relationship.
1.2 Customer’s order constitutes in connection with these Terms and Conditions the sole Agreement between the parties.
2.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Agreement: this Agreement between Customer and Konduko in order to enable Konduko to deliver services as described herein to Customer and Customer to pay Konduko for Services.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation in accordance with the number of purchased Authorised User accounts.
Business Day: a day other than a Saturday, Sunday or public holiday in the city of Konduko’s headquarters.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.
Customer Data: the data inputted by the Customer, Authorised Users, or Konduko on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Documentation: the document made available to the Customer by Konduko online which sets out a description of the Services and the user help for the Services.
Effective Date: the date of the Agreement is the date of the online subscription account activation and order of the services.
Normal Business Hours: 9.00 am to 6.00 pm local time at Konduko’s headquarter, each Business Day.
Services: the subscription services provided by Konduko to the Customer under the Agreement via www.konduko.com as more particularly described in the Documentation.
Software: the online software applications provided by Konduko as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to Konduko for the User Subscriptions.
Subscription Term: Usual Subscription Term is for the length of the delivery of the Services for one pre-defined Trade Show.
Trade Show: The Trade Show Konduko shall deliver its Services for.
User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 10.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with the Agreement.
2.2 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
2.3 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Agreement.
2.4 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Agreement under that statute or statutory provision.
- USER SUBSCRIPTIONS
3.1 Konduko hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
3.2 In order to maintain the Services and monitor Customer’s use of Konduko’s Services Konduko shall have the right to monitor the name and password of each Authorised User. Such audit may be conducted in such a manner as not to substantially interfere with the Customer’s normal conduct of business.;
3.3 if any of the audits referred to in clause 3.2 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Konduko’s other rights, the Customer shall promptly disable such passwords and Konduko shall not issue any new passwords to any such individual; and
3.4 if any of the audits referred to in clause 3.2 reveal that the Customer has underpaid Subscription Fees to Konduko, then without prejudice to Konduko’s other rights, the Customer shall pay to Konduko an amount equal to such underpayment as calculated in accordance with the then current pricelist within 10 Business Days of the date of the relevant audit.
3.5 The Customer shall not access, store, distribute or transmit any viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property;
and Konduko reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
3.6 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under the Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties; or
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 3; and
3.7 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify Konduko.
3.8 The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
4.1 Konduko shall, during the Subscription Term, provide the Services and make available appropriate Documentation to the Customer on and subject to the terms of the Agreement.
4.2 Konduko shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance. Planned maintenance will be carried out on a regular basis or with at least 2 weeks’ notice and not during supported Trade Shows ; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that Konduko will use reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.
4.3 Konduko will, as part of the Services and at no additional cost to the Customer, provide the Customer with Konduko’s standard customer support services during Normal Business Hours in effect at the time that the Services are provided. Konduko will take reasonable efforts to address and resolve any issue related to the use of the Service as fast as possible. Contact numbers and support email addresses are made available publicly on Konduko’s website. The Customer may purchase enhanced support services separately at Konduko’s then current rates.
- CUSTOMER DATA
5.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2 Konduko shall follow its archiving procedures for Customer Data in accordance with local laws and the policies agreed with the trade show organiser. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Konduko to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Konduko in accordance with Konduko’s archiving procedures Konduko shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Konduko to perform services related to Customer Data maintenance and back-up).
5.3 Konduko shall, in providing the Services, comply with applicable privacy laws.
5.4 If Konduko processes any personal data on the Customer’s behalf when performing its obligations under the Agreement, the parties record their intention that the Customer shall be the data controller and Konduko shall be a data processor and in any such case:
(a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and Konduko’s other obligations under the Agreement;
(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Konduko so that Konduko may lawfully use, process and transfer the personal data in accordance with the Agreement on the Customer’s behalf;
(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(d) the Customer shall ensure that Customer is able to grant Konduko the necessary rights to enable to use Customer’s data for promotional reasons (e.g. statistical purposes) in anonymized form; and
(e) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage. Third party providers
- THIRD PARTY PROVIDERS
- KONDUKO’S OBLIGATIONS
7.1 Konduko undertakes that the Services will be performed substantially in accordance with the description of the services and with reasonable skill and care.
7.2 The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Konduko’s instructions, or modification or alteration of the Services by any party other than Konduko or Konduko’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Konduko will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 8.1. Notwithstanding the foregoing, Konduko:
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.3 The Agreement shall not prevent Konduko from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
7.4 Konduko warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under the Agreement.
- CUSTOMER’S OBLIGATIONS
The Customer shall:
(a) provide Konduko with:
(i) all necessary co-operation in relation to the Agreement; and
(ii) all necessary access to such information as may be required by Konduko;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under the Agreement;
(c) carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Konduko may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Konduko, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by Konduko from time to time; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Konduko’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
9.1 The Customer shall pay the Subscription Fees to Konduko for the User Subscriptions in accordance with this clause 10 and the order.
9.2 The Subscription Fees The billing amount shall be immediately payable and due for payment without deductions within 14 days after receipt of the invoice. Customer may pay the Subscription Fees by way and with the details stated in the invoice or on Konduko’s website. The Customer shall provide to Konduko valid, up-to-date and complete details and approved purchase order information acceptable to Konduko and any other relevant valid, up-to-date and complete contact and billing details. The Subscription Fee has to be paid before the respective Trade Show.
9.3 The Subscription Fee includes the rent for the Konduko Reader which has to be returned to Konduko at the end of the respective Trade Show or Subscription Period whichever is later.
9.4 If Konduko has not received payment within 14 days after the due date, and without prejudice to any other rights and remedies of Konduko:
(a) Konduko is under no obligation to set up Customer’s account and/or distribute Konduko’s reader to Customer.
(b) Konduko may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Konduko shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(c) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of Konduko’s bankers in Switzerland from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.5 All amounts and fees stated or referred to in this Agreement are non-cancellable and non-refundable. Subscription Fees are solely Konduko’s discretion and may vary. The then current pricelist will be available on Konduko’s website.
9.6 Should the Konduko Reader be damaged during the use by Customer or not returned to Konduko after the end of the contractual term Customer shall pay the sum of 1,000 EUR to Konduko for the loss and/or damage of the Konduko Reader.
- PROPRIETARY RIGHTS
10.1 The Customer acknowledges and agrees that Konduko and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade-marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
10.2 Konduko confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
11.1 Each party undertakes that it shall not [at any time during this agreement, and for a period of three (3) years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party.
11.2 Notwithstanding the aforesaid each party may disclose the other party’s confidential information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause (Confidentiality); and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
12.1 The Customer shall defend, indemnify and hold harmless Konduko against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) Konduko provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
12.2 Konduko shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Konduko is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to Konduko in the defence and settlement of such claim, at Konduko’s expense; and
(c) Konduko is given sole authority to defend or settle the claim.
12.3 In the defence or settlement of any claim, Konduko may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
12.4 In no event shall Konduko, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than Konduko; or
(b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Konduko; or
(c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from Konduko or any appropriate authority.
12.5 The foregoing states the Customer’s sole and exclusive rights and remedies, and Konduko’s (including Konduko’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
- LIMITATION OF LIABILITY
13.1 This clause 14 sets out the entire financial liability of Konduko (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
(a) arising under or in connection with a contract between the parties;
(b) in respect of any use made by the Customer of the Services and Documentation or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
13.2 Except as expressly and specifically provided in this Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Konduko shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Konduko by the Customer in connection with the Services, or any actions taken by Konduko at the Customer’s direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
(c) the Services and the Documentation are provided to the Customer on an “as is” basis.
13.3 Nothing in this Agreement excludes the liability of Konduko:
(a) for death or personal injury caused by Konduko’s negligence; or
(b) for fraud or fraudulent misrepresentation.
13.4 Subject to clause 14.2 and clause 14.3:
(a) Konduko shall not be liable whether in tort (including for [negligence or] breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) Konduko’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
- TERM AND TERMINATION
14.1 This Agreement shall, unless otherwise terminated as provided in this clause 15, commence on the Effective Date and shall continue for the entire deployment of the service, unless otherwise terminated or renewed in accordance with the provisions of this Agreement
14.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
15.1 Force Majeure: Konduko shall have no liability to the Customer under these terms and conditions if it is prevented from or delayed in performing its obligations by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs, failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Kondukos or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
15.2 Variation: No variation of the agreement under these terms and conditions shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.3 Severance: If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
15.4 Governing law: This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Switzerland.
15.5 Jurisdiction: Each party irrevocably agrees that the court of Bern, Switzerland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).