Distributed Order Management
Optimize order fulfilment across multiple inventory sources, locations and partners.
These Terms of Lease and Software License Agreement (“Agreement”) are entered into by and between KEROS DIGITAL SA a corporation formed under the laws of Switzerland having its principal place of business at Via Cantonale 18, 6928 Manno (referred to as "KEROS," "we," "our," or "us")
and CLIENT as defined in the Purchase Offer (hereby referred to as “Customer” or “Client”), regarding the rent of the software defined in the Purchase Offer (the "Product").
By renting the Product, the Client is asserting with the below-stated Terms of the present Agreement. Any violation of this Agreement will automatically deprive the Customer of the right to use the Product.
1.1 This Agreement describes the terms governing the Customer use of the Product including content, updates and new releases (collectively, the “Software’) and gives the Customer certain rights and responsibilities as more fully described herein.
1.2 By renting the Product, Customer obtains a License, which will remain valid until KEROS terminates this License because of Customer's failure to comply with any of its Terms and Conditions.
1.3 The Customer is authorized by these Terms of Lease to resell the Product only if it has been appointed by Keros as an official reseller in a separate written agreement.
1.4 Pursuant to clause 1.3, shall the Customer resell the Product to its own customer (End Customer), the Customer must make sure that the End Customer abides by these Terms of Lease and Software License Agreement.
1.5 This Agreement and the license term shall commence on the date indicated in the Purchase offer and continue for a fixed period of 1 (one) year or other period set out in the Purchase Offer (“Minimum Subscription Period”). Unless terminated according to clause 1.6 below, the Agreement and the license term shall automatically be extended by 1 (one year), or other period set out in the Purchase Offer (“Renewal Period”).
1.6 Both Parties can terminate the Agreement and the license term by any cause by giving the other Party a notice of 2 (two) calendar months, or other period set out in the Purchase Offer, before the expiry of the Minimum Subscription Period or any Renewal Period (“Notice Period”).
2.1 Prices for Products and Services shall be those specified in KEROS’ then current Price List, less any applicable discount at the time of acceptance of the Purchase Order by KEROS.
2.2 All prices are exclusive of any freight, handling and shipping insurance charges, taxes, fees and duties or other similar amounts, however designated,
including without limitation value added, sales and withholding taxes which are levied or based upon the prices, charges or upon this Agreement. The Customer shall pay any taxes related to Products and Services provided pursuant to these Terms of Lease.
3.1 The Customer shall rent Products by signing a Purchase Offer ("Purchase Offer"), signed, if requested by KEROS, or (in the case of electronic transmission) sent by its authorized representative, indicating specific Products .
3.2 The terms of this Agreement shall apply, regardless of any additional or conflicting terms on any Purchase Offer or other correspondence or documentation submitted by Customer to KEROS, and any such additional or conflicting terms are deemed rejected by KEROS.
4. LIMITATION OF LIABILITY
4.1 KEROS' MAXIMUM LIABILITY FOR DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WILL IN NO EVENT EXCEED THE PRICE PAID FOR THE AFFECTED PRODUCT SUBJECT TO THE CLAIM OR THE PRICE PAID FOR THE AFFECTED SERVICE DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE INITIAL EVENT GIVING RISE TO THE CLAIM.
5. LICENSE GRANT AND RESTRICTIONS
5.1 The Software is protected by copyright, trade secret, and other intellectual property laws as fully described in Art. 15 below. The Customer is only granted certain limited rights to install and use the Software, and KEROS reserves all other rights in the Software not granted to the Customer in writing herein. As long as the Customer meets any applicable payment obligations and comply with this Agreement, KEROS grants the Customer a personal,
limited, nonexclusive, nontransferable, revocable authorization to use the Software only for the period of use provided in the ordering and activation terms, as set forth in this Agreement, or in accordance with KEROS’ then-current product discontinuation policies, as updated from time to time.
5.2 The Customer acknowledges and agrees that the Software is leased, not sold. Customer agrees not to use the Software in a manner that violates any applicable law or this Agreement. For example, unless authorized by KEROS in writing, Customer agrees he will not:
• Provide access to or give the Software or any part of the Software to any third party;
• Reproduce, duplicate, copy, deconstruct, reverse-engineer, sell, trade or resell the Software;
• Transfer the Customer license to the Software to any other party;
• Permit any third party to benefit from the use or functionality of the Software via a rental, lease, timesharing, service bureau, hosting service,
or other arrangement; or
• Upload, host, use or access the Software via a timesharing, service bureau, virtualization, application hosting or other remote access arrangement.
If the Customer violates any of these terms, this Agreement and the Customer’s license to use the Software may be terminated by KEROS in its sole discretion.
6.1 The Customer shall pay to KEROS a fee for the Lease as set out in the Purchase Offer (“License Fee”). The License Fee shall include KEROS’s charges for the corrective maintenance of the Software during the term of this Agreement according to the scope and service levels set out in Sect. 9 of this Agreement. .
6.2 Software comes with different options (License Options). Fee depends on certain parameters specified in the License Options selected during the purchase as set out in the Purchase Offer
6.3 The Customer shall pay KEROS the License Fees according to the payment terms set out in the Purchase Offer
6.4 In avoidance of doubt, any installation, configuration, integration and customization services (“Implementation Services”) are not part of this Agreement and shall be regulated with a separate service agreement.
6.5 All sums payable under this Agreement are exclusive of VAT, which shall be charged by KEROS at the applicable rate.
6.6 In respect of any lease periods, should this Agreement continue after the end of the "Minimum Subscription Period", the lease fees for the Software shall be invoiced in accordance with the Purchase Offer.
The Products will be Available ninety nine and one-half percent (99.5%) to be calculated on a quarterly basis (Calendar Quarters). If the Products are not Available as indicated for a Calendar Quarter, Client will be entitled to receive a service credit equal to a percentage of the applicable subscription fee for such period as follows:
|Less than 99.5% but greater than or equal to 98.9%||5.0%|
|Less than 98.5% but greater than or equal to 97.9%||7.5%|
|Less than 97.5% but greater than or equal to 96.9%||10.0%|
|Less than 96.5% but greater than or equal to 95.9%||12.5%|
|Less than 95.5% but greater than or equal to 94.9%||15.0%|
|Less than 94.9%||20.0%|
Available means the Software is up and running and able to receive and accept orders from its own e-commerce front-end or the connected e-commerce front-end. Availability will be calculated as follows for each Calendar Quarter:
Availability=100 XTotal Minutes−DowntimeTotal Minutes−Excluded DowntimeAvailability=100 XTotal Minutes−DowntimeTotal Minutes−Excluded Downtime
Total Minutes means the total number of minutes in the applicable quarter. Downtime means minutes during the applicable quarter that the Products are not Available (including Excluded Downtime). Excluded Downtime includes any unavailability caused by circumstances beyond Keros’ reasonable control, including computer or telecommunications failures or delays involving hardware or software not owned by Keros, network intrusions or denial of service attacks, Customer's information content or application programming and integrations, and acts or omissions of Customer or its agents.
Customer will promptly notify Keros if the Products are not Available. Failure of some features or functions within the Products does not mean that the Products are not Available if such unavailability does not impact the process necessary for a consumer to complete an order from the Products.
To file a claim for a service level credit, Client must send an email to firstname.lastname@example.org (or such other address designated by Keros) within fifteen (15) days after the end of the Calendar Quarter for which a claim is made that includes downtime information with dates and time periods for each instance of downtime. All claims will be verified against Keros’ system records. If Keros’ records do not support the periods of downtime submitted by Client, Keros will provide Client its analysis of the Availability of the Products for the Client for the Calendar Quarter.
8.1 KEROS does not warrant that the Software will function without interruption or be error free.
8.2 KEROS warrants and represents that the use of the Software will not infringe the Intellectual Property Rights of any third party.
8.3 KEROS makes no other express or implied warranty, guarantee or undertaking in relation to the Software or any other KEROS product or otherwise under this Agreement, including but not limited to any warranty of merchantability, warranty of fitness for a particular purpose, warranty that the Software will function without interruption except for those warranties which are implied by, and which are incapable of exclusion, restriction or modification under, the laws applicable to this Agreement.
9. CORRECTIVE MAINTENANCE SERVICES
9.1 Keros provides corrective maintenance for failures or issues resulting from bugs or errors in the Software licensed by the Client under this Agreement (“Corrective Maintenance Services”). In avoidance of any doubt, Keros does not cover for failures or errors resulting from client-specific product implementation, customizations, or integrations performed either by Keros or one of its partners. Additionally, under the terms of this Agreement, Keros doesn’t cover for evolutive maintenance and other consulting activities. Extensions to the scope and service levels of Keros Corrective Maintenance Services can be procured by the Client with a separate support services agreement.
9.2 Unless differently agreed in a separate support services agreement, KEROS technical support will be available by contacting as follows during normal business days (Swiss calendar) unless otherwise indicated:
Telephone (9AM-6PM CET): +41.91.600 11 29
9.3 KEROS may change its technical support telephone numbers or provide additional numbers, therefore, please visit periodically our website.
9.4 KEROS will provide technical support to not more than two (2) named Customer Technical Contact, that could be time to time changed in agreement between the Customer and KEROS.
9.5 KEROS DOES NOT GUARANTEE, REPRESENT OR WARRANT CONSULTATION RESULTS, IDENTIFICATION OF ALL VIRUSES OR
THAT ALL ERRORS AND BUGS WILL BE CORRECTED.
9.6 To initiate a request for technical support, Customer Technical Contact must report a failure in the product which is based on bugs or errors of the Product itself. The priority or severity of each service request will be defined upon the priority level assigned at the acceptance of the request.
9.7 To properly support the customer, a priority level has to be assigned to each problem. Accurately prioritizing the technical issue is critical to mutual success and guidelines will be applied in determining the appropriate priority level. KEROS SHALL UNDERTAKE REASONABLE EFFORT TO:
A. Acknowledge receipt of the Service Request from the Customer Technical Contact within the allotted time following the priority level (Response Time). This will generally be done via the same communication medium used to report the Service Request.
A. Provide a short status report to the Customer within a reasonable time and:
A. Solve the Service Request by providing a remedy that could take the form of eliminating the defect, providing upgrades or demonstrating how to avoid the effect of the defect with reasonable commercial effort. The remedy could also include error corrections,
bugs fixes, workarounds, replacements or any other type of software or documentation correction.
A. Despite the exercise of any KEROS reasonable effort, there could be problems that cannot be solved in a commercially reasonable timeframe. In that case the KEROS support team will escalate the problem to KEROS board members and an appropriate action will be taken with the Customer to find a commercial agreement that could be accepted by each party.
9.8 Priority levels guidelines and target response time:
Unless differently agreed in a separate support services agreement, KEROS technical support will endeavor to provide the services set out in clause 9.1 according to the below target response times.
Target Response Times:
Priority 1: 2 business days
Priority 2: 2 business days
Priority 3: best effort
Priority 4: best effort
Requests will be classified by priority as set out below:
CRITICAL (Priority 1) — the problem results in extremely serious interruptions to a production system. It has affected the entire user community.
Tasks that should be executed immediately cannot be executed because of a complete crash of the system or interruptions in main functions of the production system. Data integrity is compromised and the service request requires immediate processing as the issue can result in significant financial losses. The customer shall CALL Keros Customer Support for all critical priority 1 issues.
URGENT (Priority 2) — the problem results in serious interruptions to normal operations. In a production system, important tasks cannot be performed, but the error does not impair essential operations. Processing can still continue in a restricted manner, and data integrity may be at risk. The service request requires timely processing, because the malfunction could cause serious interruptions to critical processes or negatively impact business.
IMPORTANT (Priority 3) — the problem causes interruptions in normal operations. It does not prevent operation of a production system, or there could be minor degradation in performance. The error is attributed to malfunctioning or incorrect behavior of the software.
MINOR (Priority 4) — the problem results in minimal or no interruptions to normal operations (no business impact). The issue consists of a malfunctioning resulting in cosmetic or trivial issues that do not affect the performance of the system.
The Customer agrees not to use the Software for any illegal purpose or in violation of any applicable local or international law. The Customer is encouraged to archive his Content regularly and frequently. The Customer is responsible for any Content that may be lost or unrecoverable through the Customer use of the Software. KEROS is not responsible for the Content or data the Customer provides through the Customer use of the Software.
11. DISCLAIMER OF WARRANTIES
11.1 THE CUSTOMER USES OF THE SOFTWARE AND CONTENT ACCESSIBLE THROUGH THE SOFTWARE IS ENTIRELY AT THE CUSTOMER OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KEROS, ITS AFFILIATES, AND ITS THIRD PARTY SERVICE OR DATA PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY REFERRED TO AS, "SUPPLIERS") DO NOT WARRANT THAT THE SOFTWARE IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION.
11.2 The Customer agrees to indemnify and hold KEROS, its Affiliates, Licensor and Suppliers harmless from any and all claims, liability and expenses,
including reasonable attorneys' fees and costs, arising out of the Customer use of the Software or breach of this Agreement (collectively referred to as "Claims"). KEROS reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. The Customer agrees to reasonably cooperate as requested by KEROS in the defense of any Claims.
11.3 KEROS WILL NOT BE RESPONSIBLE FOR DAMAGES RESULTING FROM MAINTENANCE OR MODIFICATIONS, ADJUSTMENTS, ALTERATIONS MADE BY THIRD PARTIES.
11.4 KEROS MAKES NO WARRANTY AND WILL NOT BE RESPONSIBLE WITH REGARD TO ANY THIRD PARTY PRODUCTS, THIRD PARTY CONTENT OR ANY SOFTWARE, QUIPMENT, HARDWARE OBTAINED FROM THIRD PARTIES.
12. CHANGES TO THIS AGREEMENT OR THE SOFTWARE
Keros may change this Agreement from time to time, and the changes will be effective when keros notifies the Customer by other means. Please review the Agreement periodically on the website for changes. Keros has the right to change any of the terms of this Agreement upon reasonable notice to the Customer. Keros may also change or discontinue the Software, in whole or in part, including but not limited to, any feature or aspect of the Software,
Internet based services, pricing, technical support options, and other product-related policies. Customer continued use of the Software after KEROS
posts or otherwise notifies the Customer of any changes, indicates the Customer agreement to the changes.
13. COMPLIANCE WITH LICENSES
If the Software is directly installed in Client’s servers, then KEROS may, no more than once every 12 months, upon seven 7 days’ prior notice to the Client, appoint its personnel or an independent third party auditor who is obliged to maintain confidentiality to inspect Client’s records, systems, and facilities to verify that Client’s installation and use of any and all Software or Services is in conformity with its valid licenses from KEROS. Additionally,
Client will provide KEROS with all records and information requested by KEROS in order to verify that its installation and use of any and all Software and Services is in conformity with Client’s valid licenses from KEROS within 30 days from the request. If the verification discloses a shortfall in licenses for the Software or Services, Client will immediately acquire any necessary licenses, subscriptions, and any applicable back maintenance and support. If the underpaid fees exceed 5% of the value of the payable license fees, then Client will also pay for KEROS reasonable cost of conducting the verification.
KEROS may immediately and without notice terminate this Agreement or suspend or terminate the license to the Software if the Customer fails to comply with these terms or with the terms provided in the Purchase Offer including the payment of any invoice issued by KEROS. Upon any termination the Customer must immediately stop using and delete or destroy all copies of the Software and any outstanding payments will become due. Any termination of this Agreement shall not affect KEROS’ rights to any payments due to it. KEROS may terminate a free account at any time. Other requirements regarding termination or cancellation of the Customer’s license to the Software may apply based on the specific ordering or activation terms for the Software.
15. GOVERNING LAW AND ARBITRATION
This Agreement shall be governed by and enforced in accordance with the laws of Switzerland. All disputes arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall, unless amicably settled between the parties, be finally settled by arbitration according to the Rules of Arbitration of the International Chamber of Commerce, Lugano (“Rules“) by three arbitrators in accordance with such Rules. The seat of arbitration shall be Lugano, Switzerland. The party which substantially prevails in such arbitration will be entitled to all its actual attorneys’ fees and costs.
16. INTELLECTUAL PROPERTY
KEROS owns all worldwide right, title and interest in and to the Products and all confidential information, know-how, technology, code, tools,
documentation and intellectual property developed by or for KEROS, including all patents, copyrights and other intellectual property rights and any revisions, derivatives, modifications and enhancements thereto. Unless expressly set forth in this Agreement, KEROS does not transfer to Customer any worldwide right, license, title or interest in KEROS’ intellectual property.
Customer may provide KEROS with suggestions, enhancement requests, comments, feedback or other input relating to the Product. Unless otherwise agreed to in writing by the parties with respect to a suggestion, KEROS has a royalty-free, worldwide, irrevocable, license to use, disclose, reproduce,
license, distribute and exploit any suggestion without restriction or obligation of any kind for the maximum period permitted by law.
17. PERSONAL DATA
Customer agrees that KEROS will process personal data on behalf of Customer under this Agreement. Customer will provide third parties all required information about the processing of personal data and ensure that any third parties and authorities have given their consent or approval to such processing as may be required by law or regulation. With respect to any processing of personal data by KEROS on behalf of Customer, KEROS is deemed “data processor” and Customer is deemed “data controller”. As data controller, Customer guarantees that any personal data that will be made accessible or otherwise provided to KEROS to perform this Agreement will have been collected and shared with KEROS in accordance with applicable law and that KEROS processing of such data as contemplated hereby will be in accordance with applicable law, including for example compliance of information and consent and authorization requirements in relation to individuals whose data are processed. KEROS may not transfer or make accessible personal data to its affiliates or third parties located outside the European Economic Area without Customer’s prior written consent, except to affiliates and third parties that provides services to KEROS for contractual, technical and organizational purposes and that have committed to provide for an adequate level of protection for personal data as required by the EU Data Protection Directive 95/46/EC or any future data protection regulation that may become mandatorily applicable in the European Union.
If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement.
i. The Customer acknowledges that the Software granted to the Customer by KEROS, in its quality as exclusive licensor.
ii. This Agreement is between Customer and KEROS only. The Customer acknowledges that KEROS is solely responsible for the Software and the content thereof.
iii. The Customer acknowledges that KEROS is solely responsible for providing any maintenance services, for which additional fees may apply.
iv. The Customer acknowledges that KEROS is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Software to conform to any applicable warranty, the Customer may notify KEROS. Customer may recover from KEROS only direct damages up to the amount Customer paid for the Software. The Customer cannot recover lost profits, data loss, business damage, damages that are not reasonably foreseeable, or any other loss or damages including consequential, special, indirect or incidental damages.
v. Product Claims: KEROS, is responsible for addressing any user or third party claims relating to the Software or the user’s possession and/or use of the Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Software fail to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
vi. Direct any questions, complaints or claims to: