IMPORTANT INFORMATION – THIS END USER SERVICES AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU, EITHER AS AN INDIVIDUAL, COMPANY OR OTHER LEGAL ENTITY (IN ANY CAPACITY REFERRED TO AS “END USER”, “YOU” OR “YOUR”) AND GEKKOBRAIN ApS. (“GEKKOBRAIN”).
BY DEPLOYING GEKKOBRAIN FOR SAP HANA OR OTHERWISE USING THE SERVICES (AS DEFINED BELOW), YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” WILL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES
Definitions. As used in this Agreement, the following terms have the following definitions:
(a) “Benefiting Party” means a party seeking indemnification under this Agreement.
(b) “Google Cloud Computing Services” means Google Cloud Platform cloud based computing services stated at https://cloud.google.com/terms/services.
(c) “Confidential Information” means all data and information, not made available to the general public, oral or written, that relates to Gekkobrain’s past, present, or future research, development or business activities, information relating to Services, the Software, Support, developments, inventions, processes, plans, financial information, customer and supplier lists, forecasts, and projections.
(d) “Data Processing and Security Terms” means the terms located at:https://gekkobrain.com/gekkobrain-data-processing-and-security-terms/ or as otherwise provided by Gekkobrain to Customer.
(e) “Defending Party” means a party from whom indemnification is sought under this Agreement.
(f) “Documentation” means the Services documentation provided to you by Gekkobrain from time to time.
(g) “Force Majeure” means any cause or event not within the reasonable control of the relevant party and without its fault or negligence, such as an act of God, act of war, labor disputes, reason of fire, floods, failure of the internet or any network used to access or provide the Services, failure of service attack, or inability to obtain necessary materials or services from suppliers if no equipment sources for such suppliers or services are readily available.
(h) “Operational Data” means certain operational information, such as your system performance and operational logs information.
(i) “Order” means a purchase order or similar electronic or written request for Services or for increased or extended deployed capacity that is submitted to Gekkobrain or to a Partner, including through Gekkobrain’s management interface.
(j) “Partner” means an authorized Gekkobrain reseller, distributor, partner or solution provider.
(k) “Services” means the Gekkobrain services and products ordered by you via a valid Order accepted by Gekkobrain or a Partner, or otherwise purchased by you in accordance with this Agreement, including through the management interface.
(l) “Software” means the software underlying the Services, including Software Components.
(m) “Software Components” means software components made available to you by Gekkobrain in connection with the Services, for installation on your computer systems and/or on your Google Cloud Computing Services.
(n) “Support” means support for the Services, the terms of which are located at https://gekkobrain.com/support/
(o) “Third Party Components” means third party software, files and components that are subject to open source and/or third-party license terms, that may be used by, or included in, the Services and/or Software.
(p) “Warranty” means the limited warranty described in Section 17 (Limited Warranty; Disclaimer) below.
(q) “Warranty Exclusion” means a failure of the Services or Software that results from or is otherwise attributable to any of the following:
(a) the modification of Services or Software not made or authorized by Gekkobrain in writing, where such infringement would not have occurred but for such modifications, (b) Gekkobrain’s compliance with specifications provided by you, (c) your failure to use updated or modified Services or Software made available by Gekkobrain, (d) your use or distribution of Services or Software other than in accordance with this Agreement and the Documentation, or (e) any failure that is caused or initiated by Gekkobrain’s hosting provider or by any other third party, including internet service providers, internet network providers and the Google Cloud Computing Services.
Services. Subject to the terms of this Agreement and payment of all applicable fees, Gekkobrain will make the Services available to you during the term of this Agreement for your use in accordance with the Documentation. Following your purchase of Services, Gekkobrain will provide subscription information via which you may access the applicable Services.
Subject to the terms of this Agreement and payment of all applicable fees, Gekkobrain will make the Services available to you during the term of this Agreement for your use in accordance with the Documentation. Following your purchase of Services, Gekkobrain will provide subscription information via which you may access the applicable Services.
Software Components. In order for the Services to function properly, you will be required to install certain Software Components on your computer systems and/or on your Google Cloud Computing Services. Gekkobrain grants to you a non-exclusive, non-sublicensable, limited license to use the Software Components in accordance with the Documentation during the term of this Agreement, in order to receive the Services. All other rights in the Software Components are expressly reserved by Gekkobrain.
Google Cloud Computing Services. The Services may require the use of Google Cloud Computing Services. Gekkobrain does not provide such Google Cloud Computing Services and therefore, in order to use the Services, you must independently purchase the Google Cloud Computing Services. The cost of the Google Cloud Computing Services is not included in the fees payable under this Agreement. Your right to use such Google Cloud Computing Services is subject to any agreements and terms between you and the provider of the Google Cloud Computing Services and you are solely responsible for compliance with any such agreements and terms. If you purchased the Service on a marketplace associated with certain Google Cloud Computing Services, you may use the Services and Software ONLY with such Google Cloud Computing Services, and may not use the Services and Software with any other cloud computing services. In addition, use of Services and/or Software with any cloud-based computing services or other hardware that are not Google Cloud Computing Services or other hardware approved by Gekkobrain in the Documentation is prohibited and constitutes a breach of this Agreement. Notwithstanding the foregoing, if the Services permit you to migrate your workloads from other cloud computing services to Google Cloud Computing Services, such migration is not a breach of this Agreement; provided that Gekkobrain disclaims, and you irrevocably release Gekkobrain from, any and all liability for your use of such other cloud computing services. Use of the Services and/or Software on any cloud computing services prohibited by this Agreement may cause damage to your files and data. Gekkobrain disclaims, and you irrevocably release Gekkobrain from, any and all liability for any such damage.
Other Rights and Limitations. You may not, and may not permit or aid others to, translate, reverse engineer, decompile, disassemble, update, modify, reproduce, create derivative works of, duplicate, copy, distribute or otherwise disseminate all or any part of the Software, or extract or attempt to extract source code from the object code of the Software. You may not make any commercial use of the Services or the Software, whether or not for consideration, other than for your own internal business purposes, or publicly perform or publicly display the Software, unless explicitly agreed in writing by Gekkobrain.
Support. The terms for Support, located at https://gekkobrain.com/support/, are incorporated by reference in this Agreement.
Service Availability. Gekkobrain will use commercially reasonable efforts to make the hosted Services available 24 hours a day, 7 days a week, other than downtime for scheduled maintenance or critical bug fixes. Gekkobrain will strive to give you advance notice of any impending downtime 48 hours in advance or, if not possible, as much advance notice as possible, and will strive to perform scheduled maintenance during non-peak hours based on US Eastern time. Gekkobrain cannot and will not be responsible or liable in any manner for any downtime or disruptions or difficulties in accessing the Services that are caused or initiated by its hosting provider or by any other third party, including internet service providers, internet network providers.
Orders. You may order Services and increase or extend deployed capacity of existing Services by submitting an Order. All Orders are subject to acceptance by Gekkobrain or the applicable Partner. The applicable fees, if any, for Services and Support will be as stipulated in Gekkobrain’s then-current price list or, if the order is made through a Partner, the then-current price list of such Partner.
Usage of Increased Capacity. If you order Services for a defined subscription period and you use increased or extended deployed capacity of Services beyond the capacity that was otherwise ordered by you for such period, such use will be deemed an irrevocable Order placed by you for such additional capacity throughout the remainder of your then-current subscription period in accordance with the terms of this Agreement.
Taxes. The prices Gekkobrain charges for Services and Support do not include, and you shall pay or refund Gekkobrain for, all taxes (including, without limitation, sales, withholding, value-added and similar taxes) or customs duties paid or payable, however designated, based on the sale of Services and Support under this Agreement, with the exception of Gekkobrain’s income taxes. You will gross-up all payments to ensure remittance to Gekkobrain of the amounts invoiced.
Payment Terms. If applicable, all payments, if any, will be due thirty (30) days from the date of an Order or under other payment terms agreed in writing or electronically between you and Gekkobrain or the applicable Partner. All payments will be made in U.S. dollars, by wire transfer or credit card, to the address or bank account designated by Gekkobrain or the applicable Partner. By providing credit card information to Gekkobrain and using the Services, you authorize Gekkobrain to charge such credit card for all Services and Support purchased by you from time to time. All amounts not paid when due will accrue interest at the lower of 1.0% per month or the highest rate permissible by applicable law. You will promptly reimburse Gekkobrain for all reasonable costs and expenses (including reasonable attorneys’ fees) incurred by Gekkobrain in connection with collecting any overdue amounts.
Proprietary Rights. You acknowledge and agree that the Services and the Software are proprietary products of Gekkobrain and its licensors, protected under patents, copyright laws and/or international treaties. You further acknowledge and agree that all right, title and interest in and to the Services and the Software, including associated intellectual property rights and all improvements, modifications, revisions, derivative works, customization and integration work product, customer feedback and suggestions, are and will remain the sole property of Gekkobrain and its licensors. This Agreement and the rights granted hereunder do not convey to you any interest in or to the Services and Software other than the limited license provided above. You will not remove or alter any copyright notice, trademark or other proprietary or restrictive notice or legend affixed to, embedded, contained or included in the Software or Services or any material provided by Gekkobrain.
Modification of Services. Gekkobrain may add features or functionality or improve or change or modify the Services at any time at its discretion. Gekkobrain will not intentionally remove material features or functionality, other than beta or test features or functionality, during a term for which you have paid for Services that include such features or functionality.
Prohibited Actions. Except as specifically permitted, without the prior written consent of Gekkobrain you agree not to, directly or indirectly: (i) actually or seek to interfere with or disrupt the operation of the Services; (ii) use the Services or Software to install, reproduce or run any third party software in the Google Cloud Computing Services unless you have all rights and licenses from the owner or licensor of such third party software in order to do so; (iii) use, modify, incorporate into or with other software, or create a derivative work of any part of the Software; (iv) sell, license (or sub-license), lease, assign, transfer, pledge, or share your rights under this Agreement with or to anyone else; (v) copy, distribute or reproduce the Services or Software; (vi) disclose the results of any benchmarking of the Services, or use such results for your own software development activities; (vii) modify, disassemble, decompile, reverse engineer, revise or enhance the Services or Software or attempt to reconstruct or discover any source code or underlying ideas or algorithms of the Software; and/or (viii) ship, transfer or export the Services in any manner which in violation of any applicable export control and sanctions laws and regulations, including (i) the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, (ii) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and (iii) the International Traffic in Arms Regulations (ITAR) maintained by the U.S. Department of State.
Operational Data. You are notified and acknowledge that some of the Services may allow you to send your Operational Data to Gekkobrain. Submission of Operational Data to Gekkobrain will be at your discretion. The Operational Data may contain sensitive, and/or confidential data. Gekkobrain will provide such a list of such data upon request. Operational Data may be transmitted through Gekkobrain’s servers. Gekkobrain utilizes industry standard practices and policies to maintain administrative, physical and technical safeguards for the protection and security of the Operational Data. You are notified and acknowledge that the Services may include interaction and communication with facilities hosted outside of the country where you purchased or utilize the Services or Software. Operational Data sent to Gekkobrain may be stored by Gekkobrain and may be used for Your Support. You further acknowledge that Gekkobrain may anonymize such Operational Data for use in technical training and product improvement.
Confidentiality. You will not disclose to third parties nor use for any purpose other than for the proper use of the Services any Confidential Information received from Gekkobrain in whatever form under this Agreement or in connection with the Services without the prior written permission of Gekkobrain. You will limit access to Confidential Information to those of your personnel for whom such access is reasonably necessary for the proper use of the Services under this Agreement. Such personnel will be bound by written confidentiality obligations not less restrictive than those provided for. You will be responsible for any breach of this Agreement by any of your personnel. You will protect the Confidential Information with the same degree of care, but no less than a reasonable degree of care, to prevent unauthorized disclosure or use of Confidential Information, as you exercise in protecting your own proprietary information. The limitations will not apply to Confidential Information which you can demonstrate: (i) was in your possession before disclosure hereunder provided that, immediately upon disclosure, you have brought this fact to the attention of Gekkobrain; or (ii) was in the public domain at the time of disclosure or later became part of the public domain without breach of the confidentiality obligations; or (iii) was disclosed by a third party without breach of any obligation of confidentiality; or (iv) is disclosed pursuant to administrative or judicial action, provided that you will use your best efforts to maintain the confidentiality of the Confidential Information. If only a portion of the Confidential Information falls under any of the above alternatives, then only that portion of the Confidential Information will be excluded from the use and disclosure restrictions of this provision.
Limited Warranty; Disclaimer. If you are paying a fee to use the Services, Gekkobrain warrants that: (a) the Services will perform in accordance with the Documentation in all material respects, unless the failure was caused by any of the circumstances listed in Section 7 (Service Availability) above or a Force Majeure; and (b) Support will be provided with the same level of service as Gekkobrain generally provides to its other customers. In the event of a breach of the Warranty that has not been remedied by Gekkobrain within thirty (30) days of your written notice to Gekkobrain of a breach of the Warranty and Gekkobrain’s written confirmation that a Warranty breach has occurred, your sole remedy will be to terminate this Agreement in accordance with Section 22 (Term and Termination) below and to receive a refund of amounts paid by you for use of the Services for the period following the effective date of termination.
The Warranty will not apply if the failure of the Services or Software results from or is otherwise attributable to a Warranty Exclusion.
OTHER THAN THE FOREGOING LIMITED WARRANTY, THE SERVICES, SOFTWARE AND SUPPORT ARE PROVIDED “AS-IS” AND NO OTHER WARRANTIES OF ANY KIND ARE MADE BY GEKKOBRAIN. GEKKOBRAIN DOES NOT WARRANT THAT THE SERVICES, SOFTWARE OR SUPPORT WILL MEET YOUR REQUIREMENTS OR THAT THE SERVICES’ AND SOFTWARE’S OPERATION WILL BE SECURE, UNINTERRUPTED, ERROR-FREE, FREE OF VIRUSES, BUGS, WORMS, OTHER HARMFUL COMPONENTS OR OTHER PROGRAM LIMITATIONS. TO THE EXTENT ALLOWED BY LAW, GEKKOBRAIN EXPRESSLY DISCLAIMS ALL EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INTERFERENCE, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, GEKKOBRAIN’S CUMULATIVE LIABILITY TO YOU AND ANY THIRD PARTY FOR ANY LOSS, COST OR DAMAGE RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR USE OF THE SERVICES AND/OR SOFTWARE AND/OR SUPPORT WILL NOT EXCEED THE TOTAL FEES ACTUALLY PAID BY YOU HEREUNDER OR, IN THE CASE OF PAYMENT THROUGH A PARTNER, THE TOTAL FEES ACTUALLY PAID BY THE PARTNER TO GEKKOBRAIN FOR YOUR USE OF SERVICES, DURING THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE ALLEGED DAMAGES. IN NO EVENT WILL GEKKOBRAIN BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST DATA OR LOST PROFITS, EVEN IF GEKKOBRAIN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some States may not allow the limitation or exclusion of liability for incidental damages, so the above limitation or exclusion may not apply.
Allocation of Risks. The limited warranties, warranty disclaimers, exclusive remedies and limited liability provisions are fundamental elements of this Agreement and the Services provided hereunder, and allocate risk under this Agreement between you and Gekkobrain in light of the fees charged by Gekkobrain for provision of the Services.
Third Party Software. The Services and Software may use or include Third Party Components. Your right to use such Third Party Components as part of, or in connection with, the Services and Software is subject to any applicable acknowledgements and license terms accompanying such Third Party Components. If there is a conflict between the licensing terms of such Third Party Components and this Agreement, the licensing terms of the Third Party Components will prevail in connection with the related Third Party Components. Such Third Party Components are provided on an “AS IS” basis without any warranty of any kind and will be subject to any and all limitations and conditions required by such third parties. Under no circumstances will the Services or Software or any portion thereof (except for the Third Party Components) be deemed to be “open source” or “publicly available” software.
Indemnification
Intellectual Property Infringement. Gekkobrain will indemnify you against third-party claims that the Services infringe any United States patent or any copyright or misappropriate any trade secret. If the Services become, or in Gekkobrain’s opinion are likely to become, the subject of an infringement claim, Gekkobrain may, at its option, (a) procure for you the right to continue using the Services as provided in this Agreement; (b) modify or replace the Services so that there is no infringement; or (c) terminate this Agreement and refund any amount paid for Services beyond the date of termination. Gekkobrain assumes no liability for claims to the extent such claims arise from the Warranty Exclusions.
Indemnification by You. You agree to indemnify Gekkobrain against claims brought or threatened against Gekkobrain by any other party to the extent the claim arises out of or is attributed to your negligent acts or omissions under this Agreement or the Warranty Exclusions.
Conditions of Indemnity. To claim the benefit of indemnification or defense under this Section 21, the Benefiting Party must (a) inform the Defending Party within fifteen (15) days of receiving the claim, (b) cooperate fully with the Defending Party, at the Defending Party’s expense, in investigating and defending the claim, and (c) allow the Defending Party full authority to defend or settle the claim. Notwithstanding the prior sentence, the Defending Party may not settle a claim without the Benefiting Party’s prior written consent if the proposed settlement modifies the Benefiting Party’s intellectual property rights or imposes any duty on Benefiting Party.
Term and Termination. This Agreement is effective upon your clicking the “ACCEPT” button, subscribing to the Services and/or using the Services, and will continue until terminated. Gekkobrain may terminate this Agreement with immediate effect at any time upon the giving of written notice in case of any breach by you the terms of this Agreement or any other agreement between Gekkobrain and you that has not been cured within fifteen (15) days following a written notice thereof from Gekkobrain. You may terminate this Agreement upon the giving of written notice at any time that is within fifteen (15) days of Gekkobrain’s failure to remedy a confirmed Warranty breach within the remedy period stipulated in Section 17 (Limited Warranty; Disclaimer) above. In addition, Gekkobrain may terminate this Agreement or any part of the Services at the end of the period for which you last paid subscription fees for the applicable Services or Support. Upon termination of this Agreement for any reason, you will no longer have any rights to use the Services and Gekkobrain will discontinue all access. Furthermore, you must delete all copies of the Software from your systems and Google Cloud Computing Services and confirm to Gekkobrain in writing that you have done so. All provisions hereof that by their nature should survive termination of this Agreement will survive termination of this Agreement, including Sections 5, 12, 14, 16, 18, 19, and 23—26.
Force Majeure. Neither party will be liable for any costs or damages due to nonperformance under this Agreement, arising out of a Force Majeure.
Governing Law & Jurisdiction. This Agreement will be construed and governed in accordance with the laws of California, USA, and the appropriate state or federal district courts located in the State of California, USA will have exclusive jurisdiction in any conflict or dispute arising out of this Agreement, provided, however, that nothing in this Agreement will be deemed to preclude Gekkobrain from bringing any suit, enforcing any right or taking other legal action in any other jurisdiction in which you operate.
Notices. All notices to be sent to you by Gekkobrain under this Agreement or for any purpose relating to this Agreement will be sent to the email address you provided when subscribing to the Services, and all notices delivered as aforesaid will be deemed received one day after they are sent.
Miscellaneous. This Agreement represents the complete agreement concerning the license granted and the subject matter hereof. Gekkobrain may update the terms of this Agreement from time to time by updating the Agreement located at https://gekkobrain.com/gekkobrain-end-user-service-agreement/. The parties agree that the Data Processing and Security Terms apply to this Agreement. The terms located at a URL referenced in this Agreement and the Documentation are incorporated by reference into the Agreement. After the Effective Date, Gekkobrain may provide an updated URL in place of any URL in this Agreement. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder will not be deemed a waiver by that party of such rights or actions or as to subsequent enforcement of rights or subsequent actions in the event of future breaches. Without derogating from the generality of the foregoing, failure by Gekkobrain to timely invoice or bill you for any use or Order of Services will not preclude Gekkobrain from invoicing or billing you for such use or Order at any time in the future and will not release you from any payment obligations with respect to such use or Order. If any provision of this Agreement is held to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable. You may not assign your rights or obligations under this Agreement without the prior written consent of Gekkobrain. Gekkobrain may assign or transfer its rights and/or obligations under this Agreement without restriction or notification.
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