These GENERAL TERMS (the “Agreement”) are entered into by and between you and Coherent Global Inc, c/o The Corporation Trust, 1209 Orange Street, Wilmington, Delaware 19801 (“Coherent”). For the purposes of this Agreement, “Customer” means the party identified as the customer in the applicable Principal Terms (as defined below). By executing Principal Terms that reference this Agreement, each party signifies that it has read, understands, and agrees to be bound by its terms. This Agreement governs all Principal Terms, and any conflicting or additional terms and conditions are of no force or effect unless agreed to in a writing signed by both parties. In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 “Add-on Services” means the additional services, functionalities, components in connection with the Software that are made available to the Customer only through the Add-on Services Plan, such as Technical Support Services or “specialist access” services as more detailed described in the Documentation.
1.2 “Affiliate” of a Party means any other person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Party. “Control”, including related terms such as “Controls”, “Controlling”, “Controlled by” or “under common Control” with, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise, and without limiting the generality of the foregoing, such ability will be deemed to exist when any person holds at least fifty percent (50%) of the outstanding voting securities or other ownership interests of such third person.
1.3 “Commencement Date” means the effective or start date of the first Principal Terms entered into by the parties or Customer and a Reseller or the last date signed by either party if no effective or start date is specified.
1.4 “Customer Data” has a meaning set forth in Section 5.3.
1.5 “Customization” means any features, functionalities, extensions, modifications, configurations in relation to the Software that require custom coding, scripts or other executable languages specifically written, designed and developed for the Customer.
1.6 “Delivery Date” means the date that Coherent will provide the Software or access to the Software to Customer, as such date may be specified in the Principal Terms, and is applicable only in relation to the Customized Plan.
1.7 “Documentation” means any and all manuals, instructions, user guides and policies and other documents and materials that Coherent develops, provides or makes available and updated from time to time to Customer in any form or medium which describe the functionality, components, features, requirements, installation (if applicable), configuration, use, support, or maintenance of the Software and the Licencing Plan.
1.8 “Equipment” has a meaning set forth in Section 3.3.
1.9 “Jurisdiction” will be specified in the Principal Terms.
1.10 “Customer” means the entity entering into the Principal Terms with Coherent or the Reseller.
1.11 “Initial Term” means the term of this Agreement starting on the Commencement and continuing for the Usage Period, unless earlier terminated as set forth herein.
1.12 “Intellectual Property Rights” means any patent, right to patent, copyright, design rights (registered and unregistered), trade mark and service mark (whether or not registered), trade and business names (including internet domain names and e-mail address names), database rights, know-how, trade secrets, unpatented inventions and any other intellectual property rights in any relevant jurisdiction.
1.13 “Open-Source Components” means any software component embedded in the Software that is subject to applicable open-source copyright license agreements, or other obligations, restrictions or license agreements that substantially conform to the open source definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third Party of any source code with which such software component is used or compiled.
1.14 “Permitted Use” means use of the Software by Customer solely for the purpose of its internal business operations.
1.15 “Principal Terms” means one or more ordering documents executed by the parties and describing the Software, Documentation and/or Maintenance Releases to be provided and the business terms related thereto. Principle terms may be entered into by the parties or Customer and a Reseller.
1.16 “Maintenance Release” with respect to any Software that shall be provided to Customer for use on Customer premises or devices, means any update, release of the Software, including any updated Documentation, that Coherent may provide to Customer during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Software, but does not include any new version of the Software, which Coherent may introduce and market generally as a distinct licensed product (as may be indicated by Coherent’s designation of a new version number), and which Coherent may make available to Customer at an additional cost.
1.17 “Renewal Term” has a meaning ascribed to it in Section 7.1.
1.18 “Term” is the collective term for the Initial Term and Renewal Term as set forth in Section 7.1.
1.19 “Software” is the software owned and provided by Coherent, as may be further described under the Principal Terms, including Software that is implemented with Add-on Services or developed with Customization.
1.20 “Licencing Plan” refers to the Licencing plan to be subscribed by the Customer in accordance with this Agreement, and as may be further described in a Principal Agreement.
1.21 “License Fees” mean the fees charged for Customer’s license to the Software and any services provided hereunder as stated in the Principal Terms.
1.22 “Usage Period” is the period during which Customer may use the Software and the Documentation and receive Maintenance Releases, as such period is specified in the Principal Terms.
2. COHERENT’S OBLIGATIONS
2.1 Software and Services. Subject to Customer’s compliance to this Agreement, Coherent shall, in accordance with this Agreement make the Software, Documentation and/or Maintenance Release (if applicable) available to the Customer depending on the scope of the Licencing Plan by assigning administrative credentials for a customer account. Customer shall also be given the rights to create login credentials for individual authorized users to access and use the Software (“Authorized Users”). The maximum number of Authorized Users are set forth in the Principal Terms. Coherent reserves the right to refuse registration of, access by or cancel of Authorized Users’ accounts as it deems appropriate to do so.
2.2 Deliverables for Customized Plan. If the Customer uses the Customized Plan which supports Customization, Coherent shall deliver to the Customer on or before Delivery Date, such Software with Customization.
2.3 Maintenance Services. Coherent may provide Customer with Maintenance Release (including updated Documentation or Software) that Coherent may, in its sole discretion, make generally available to the Customer under the Licencing Plan with or without additional charges. All Maintenance Release, upon the provision of which by Coherent to Customer under this Agreement, are deemed Software and are subject to all applicable terms and conditions in this Agreement.
2.4 Technical Support Services. Unless otherwise indicated in the Documentation, Coherent is not obliged to provide any additional services outside the scope of the Licencing Plan. Coherent shall provide Customer with reasonable technical support services in relation to the Software in accordance with the terms set forth in the Principal Terms for Customer who subscribed for Add-on Services.
3. CUSTOMER’S OBLIGATION
3.1 Authorized Users. Customer shall be responsible for creating and setting up login credentials for its Authorized Users. Customer shall take commercially reasonable efforts and implement appropriate measures or systems to prevent unauthorized use of or access to the Software and shall keep, and shall procure its Authorized Users to keep, its login credentials confidential at all times and shall be responsible for any accidental, intentional or unintentional use or disclosure of its login credentials. The Customer shall act in good faith and exercise all due care and attention to prevent the loss of and/or unauthorized use of its login credentials. Customer shall and shall procure its Authorized Users to use the Software in accordance with this Agreement. Under all circumstances, the Customer shall be liable for the acts and omission of the Authorized Users in relation to the use of Software and this Agreement.
3.2 Personal Data. Customer are solely responsible for seeking their respective client’s express consents to collect, use, process, transfer and store their personally identifying information in accordance with applicable laws and regulations. In relation to such personally identifying information, the Customer hereby agrees to remain solely responsible for all losses and/or damages arising from and/or related to data breaches arising from the use of the Software.
3.3 Requirements. Customer shall be fully responsible and ensure that it has or has procured a hardware and software environment that satisfies the minimum requirements provided by Coherent in the Documentation and ancillary services needed to enable the Customer to connect to, access or otherwise to use the Software (the “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment.
3.4 Restrictions. Customer may not: (a) modify, adapt, translate, enhance, or otherwise create derivative works or improvements of the Software; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software to any third party, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or servicer unless as permitted by this Agreement; (d) bypass or breach any security device or protection used for or contained in the Software; (e) remove, delete, efface, alter, obscure, translate, combine, supplement or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks of the Software and Documentation; (f) use the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any party, or that violates any applicable laws; (g) use the Software for purposes of: (1) benchmarking or competitive analysis of the Software; (2) developing, using or providing a competing software product or service; or (3) any other purpose that is to Coherent’s detriment or commercial disadvantage; (h) use the Software in or in connection with the design, construction, maintenance, operation or use of any hazardous environments, systems or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage; (i) integrate any third party materials, software or hardware with the Software; (j) reverse engineer, disassemble, decompile, decode or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (k) use any Open-Source Components in any manner or for any purpose or application not expressly permitted by the controlling open source license; or (l) use the Software other than for the Permitted Use or in any manner or for any purpose or application not expressly permitted by this Agreement.
3.5 Customization by Customer. Coherent will not under any circumstances provide the source code of the Software to Customer, and Customer may not design or develop any modifications or enhancements to the Software except by engaging Coherent to carry out the same through the Customized Plan.
4. FEES AND PAYMENT
4.1 Fees and Payments. Customer will pay Coherent the License Fees by the Payment Method. Unless otherwise agreed in writing, any payments made from the Customer to Coherent under this Agreement are non-refundable. Without affecting the generality of the foregoing, if the Customer wish to terminate any license under this Agreement, they may do so by providing 30 days’ advance written notice to Coherent, but any payments made will be non-refundable. If Customer has executed Principal Terms with a Reseller, Customer will pay such Reseller (and not Coherent) in accordance with the terms of such Principal Terms. Customer understands and agrees that if Customer does not pay the Reseller in accordance with the applicable Principal terms, Coherent will have the right to suspend Customer’s license to the Software, to cease providing any services provided hereunder, and to terminate this Agreement upon notice to Customer. For the purposes of this Agreement, a “Reseller” means a resale partner that is authorized by Coherent to resell the Software.
4.2 Outstanding Payments. If the Customer fails to make payments required under this Agreement on time when they become due and payable, Coherent may, without limiting its rights and remedies, suspend the access rights or license (as the case may be) granted by Coherent to the Customer under this Agreement until such amounts are paid in full. All outstanding sum shall bear interest at the rate of 5% per annum from the relevant due date to the date of payment (both days inclusive), and such interest shall be capitalized monthly in arrears.
4.3 Taxes. If the Customer is legally obligated to withhold any taxes from payments made to Coherent, Customer will be entitled to do so provided that the Customer pays the relevant taxes on behalf of Coherent to relevant tax authorities, and the Customer furnishes to Coherent copies of receipts or other government certifications evidencing all taxes withheld from such payment promptly after such receipts are available. Customer and Coherent will cooperate and endeavour to comply with all applicable documentation requirements so as to minimize the amount of withholding taxes imposed.
4.4 Maintenance Service Fees. With respect to any Software that shall be provided to Customer for use on Customer premises or devices, if Coherent’s employees and/or contractors are required to travel on-site for the performance of any Software upon Customer’s request (including but not limited to the provision of training, installation and/or support maintenance if applicable), Customer shall pay for the reasonable related travelling costs incurred by Coherent (including but not limited to air ticket, hotel accommodation, food & beverage, local transportation, etc.).
5.1 Intellectual Property Rights Ownership. Customer acknowledges and agrees that: (a) the Software, Documentation and/or Maintenance Release (if applicable), as well as all improvements, enhancements of modifications and any Intellectual Property Rights thereto, including but not limited to any Customization, are owned by or licensed to Coherent, and Customer does not and will not have or acquire under or in connection with this Agreement any ownership interest in the Software, Documentation and/or Maintenance Release (if applicable), or in any related Intellectual Property Rights; and (b) Coherent and its licensor(s) are and will remain the sole and exclusive owners of all right, title and interest in and to the Software, Documentation and/or Maintenance Release (if applicable), including all Intellectual Property Rights relating thereto.
5.2 Reservation of Rights. Except as expressly granted under this Agreement, nothing in this Agreement will be construed to grant Customer any rights in the Software, Documentation and/or Maintenance Release (if applicable) or Intellectual Property Rights. The rights not expressly granted to Customer under this Agreement are exclusively reserved to Coherent.
5.3 Customer Data. As between Customer and Coherent, unless otherwise agreed, Customer owns all rights, title and interest in and to all electronic data or information that Customer submits to the Software (“Customer Data”). Notwithstanding anything to the contrary, the Customer grants Coherent a worldwide, non-exclusive, royalty-free, sublicensable (limited to Coherent’s Affiliates and other third party solely for the purpose of provision, development and maintenance of the Software or other activities related thereto), non-transferable (except as permitted under Section 11.7) right to collect, develop, create, extract, compile, synthesize, analyze and commercialize statistics, benchmarks, measures all such data or information during and after the Term hereof, for the purposes of improving and enhancing the Software or services relating thereto and for other development, diagnostic and corrective purposes in connection with the Software and other company offerings, and disclose such data and information in aggregate or other de-identified form in connection with its business, PROVIDED THAT such Customer Data are anonymized and not identifiable to any person or entity.
5.4 Open Source Guidelines. Customer will comply with all open source component guidelines, policies, and instructions that are communicated by Coherent to Customer (“Open Source Guidelines”).
5.5 License Grant. With respect to any Software that shall be provided to Customer for use on Customer premises or devices and subject to the terms and conditions of this Agreement, and conditioned on Customer’s compliance therewith, Coherent hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable, revocable and limited license to install and use the Software, Maintenance Release in accordance with the Documentation and this Agreement solely for the Permitted Use during the Term.
5.6 Customer Cooperation and Notice of Infringement. Customer will, during the Term: (a) take all reasonable measures to safeguard the Software, including all copies thereof (if any) from infringement, misappropriation, theft, misuse or unauthorized access; (b) at Coherent’s expense, take all such steps as Coherent may reasonably require to assist Coherent in maintaining the validity, enforceability and Coherent’s ownership of the Intellectual Property Rights in the Software, Documentation and/or Maintenance Release (if applicable); (c) promptly notify Coherent in writing if Customer becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of Coherent’s Intellectual Property Rights in or relating to the Software, Documentation and/or Maintenance Release (if applicable); or (ii) any claim that the Software, Documentation and/or Maintenance Release (if applicable), including any production, use, marketing, sale or other disposition of the Software, Documentation and/or Maintenance Release (if applicable), in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any person; and (d) provide reasonably necessary assistance or cooperation in the conduct of any claim, suit, action or proceeding by Coherent to prevent or abate any actual or threatened infringement, misappropriation or violation of Coherent’s rights in, and to attempt to resolve any claims relating to Software, Documentation and/or Maintenance Release (if applicable).
6. CONFIDENTIAL INFORMATION
6.1 “Confidential Information” means any: 1) proprietary information of a Party to this Agreement disclosed by one Party to the other that is in written, graphic, machine readable or other tangible form and is marked “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature; and 2) all information disclosed, collected or developed by Coherent. Confidential Information also include oral disclosures or other written disclosures if that information would reasonably be understood to be confidential from the context of disclosure or the nature of the information. “Confidential Information” may also include information disclosed to the disclosing party by third parties. Without limiting the foregoing, Software, Documentation and/or Maintenance Release (if applicable) are the Confidential Information of Coherent.
6.2 Exceptions. Confidential Information will not include any information that: 1) was display known and made generally available prior to the time of disclosure by the disclosing party; 2) becomes publicly known and made generally available in the public domain after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; 3) is already in the possession of the receiving Party at the time of disclosure by the disclosing party as the receiving Party’s files and records; 4) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or 5) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
6.3 Non-Use and Non-Disclosure. Each Party will: (a) treat as confidential all Confidential Information of the other Party; (b) reveal the Confidential Information only to its and its Affiliates’ officers, directors, employees and advisers on a need-to-know basis and who are obligated to maintain the confidentiality of the Confidential Information; (c) not disclose that Confidential Information to any other third party who have signed a non-disclosure agreement containing provisions substantially as protective as the terms of this Section 6.3 provided that the disclosing Party has obtained the written consent to that disclosure from the other Party; and (d) will not use that Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement. Each Party is permitted to disclose the other Party’s Confidential Information if required by law so long as the other Party is given prompt written notice of that requirement prior to disclosure and assistance in obtaining an order protecting that information from public disclosure or limiting the scope of disclosure.
6.4 Maintenance of Confidentiality. Each Party will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other Party. Without limiting the foregoing, each Party will take at least those measures that it takes to protect its own most highly confidential information and will ensure that its employees who have access to Confidential Information of the other Party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to those employees. Neither Party will make any copies of the Confidential Information of the other Party unless necessary for the purposes of this Agreement of if previously approved in writing by the other Party. Each Party will reproduce the other Party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6.5 Remedies. Each Party acknowledges that any violation or threatened violation of this Agreement may cause irreparable injury to the other Party, entitling the other Party to seek injunctive relief in addition to all legal remedies.
7. TERM AND TERMINATION
7.1 Term. This Agreement commences upon the Commencement Date and will continue in effect until the end of Usage Period (“Initial Term”). For Customer who subscribed for Recurring Plan, this Agreement will be automatically renewed for additional successive terms equivalent to Usage Period (“Renewal Term”, together with the Initial Term, the “Term”) unless 30 days written notice is served on the other Party before the end of the then-current term.
7.2 Termination for Convenience. Coherent may terminate this Agreement without cause by notifying Customer in writing. Termination in accordance with this Section 7.2 will take effect 30 days after Customer receives Coherent’s written notice of termination.
7.3 Termination for Material Breach. Either Party may terminate this Agreement if the other Party does not cure its material breach of this Agreement within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this Section 7.3 will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period.
7.4 Insolvency. A Party may immediately terminate this Agreement upon written notice to the other Party if the other Party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the other Party’s consent, if the other Party assigns its property to its creditors or performs any other act of bankruptcy, or if the other Party becomes insolvent and cannot pay its debts when they are due.
7.5 Effect of Termination or Expiration. On the expiration or earlier termination of this Agreement:
(a) all rights, licenses, and authorizations granted to Customer hereunder will immediately terminate and Customer will: (i) immediately cease all use of and other activities with respect to the Software, Documentation and/or Maintenance Release (if applicable); (ii) with respect to any Software that shall be provided to Customer for use on Customer premises or devices (if applicable), within 30 days destroy and permanently erase from all devices and systems Customer directly or indirectly controls, Software, Documentation and/or Maintenance Release (if applicable) and Coherent’s Confidential Information, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating or based on any of the foregoing, whether or not modified or merged into other materials (if any); and (iii) certify to Coherent in a signed written instrument that it has complied with the requirements of this Section 7.5 upon Coherent’s request;
(b) all amounts payable by Customer to Coherent of any kind under this Agreement are immediately payable and due (if any) no later than 15 business days after the expiration or termination of this Agreement; and
7.6 Surviving Terms. The following provisions will survive the termination or expiration of this Agreement: Sections 3.4, 3.5, 4, 5.1, 5.2, 5.3, 6, 7, 8, 9, 10 and 11, any other provisions that, by their nature, are intended to survive. All liabilities that accrued prior to termination will also survive termination or expiration of this Agreement.
8. REPRESENTATIONS AND WARRANTIES
8.1 Authorization. Each Party represents and warrants that: 1) it is duly organized, validly existing, and in good standing in the jurisdiction stated in the preamble to this Agreement; 2) the execution and delivery of this Agreement by it has been duly and validly authorized; and 3) this Agreement constitutes a valid, binding, and enforceable obligation of it.
8.2 No Conflict. Each Party represents and warrants that the execution of this Agreement and its performance under this Agreement does not and will not violate, conflict with, or result in a material default under any other agreement, indenture, decree, judgment, lien, or encumbrance to which it is a Party.
8.3 Consents. Coherent represents and warrants that it has obtained all consents necessary to permit Customer to utilize the Software (including the underlying data and content), Documentation and/or Maintenance Release (if applicable) as permitted under this Agreement.
8.4 Compliance with Laws. Customer represents and warrants it complies and will comply with all applicable international, national, state, regional, and laws of the Jurisdiction and regulations in performing its duties hereunder and in any of its business with respect to the use and exploitation of the Software.
8.5 DISCLAIMER. ALL SOFTWARE, DOCUMENTATION AND/OR MAINTENANCE RELEASE (IF APPLICABLE), INFORMATION, MATERIALS AND ANY SOFTWARE (AND RELATED SERVICES) PROVIDED BY COHERENT ARE PROVIDED “AS IS”. EXCEPT AS SET FORTH IN THIS SECTION 8, COHERENT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER (INCLUDING ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THE FOREGOING DISCLAIMERS OF WARRANTY CONSTITUTE AN ESSENTIAL PART OF THIS AGREEMENT.
9.1 Coherent Indemnification. Coherent will indemnify, defend, and hold harmless Customer and its directors, officers, and employees from and against all taxes, losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses (collectively “Losses”), arising directly from a third party claim, investigations, legal or administrative action, or litigation (collectively, “Third Party Claims”) brought as a result of or in connection with: (a) any gross negligent or intentionally wrongful act of Coherent; (b) any breach by Coherent of any of Coherent’s warranties, or representations contained in this Agreement; or (c) any violation or claimed and verifiable violation of a third party’s rights resulting in whole or in part from Software in the Jurisdiction. The foregoing obligation does not apply to the extent that such Third Party Claim or Losses arise from any allegation of or relating to any: (i) Open-Source Components or other third party materials; (ii) patent issued on a patent application published in the Jurisdiction after the Commencement Date; (iii) incorporation by the Software of, or combination, operation or use of the Software in or with, any technology (including any software, hardware, firmware, system or network) or service not provided by Coherent or specified for Customer’s use in the Documentation; (iv) modification of the Software other than by Coherent in connection with this Agreement; or with Coherent’s express written authorization and in strict accordance with Coherent’s written directions and specifications; (v) use of the Software, Documentation and/or Maintenance Release (if applicable) after Coherent’s notice to Customer of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights; (vi) negligence, abuse, misapplication or misuse of the Software, Documentation and/or Maintenance Release (if applicable) by or on behalf of Customer, its directors, officers, Authorized Users and employees or a third party; (vii) use of the Software, Documentation and/or Maintenance Release (if applicable) by or on behalf of Customer that is outside the purpose, scope, or manner of use authorized by this Agreement or in any manner contrary to Coherent’s instructions; or (viii) Third Party Claim or Losses for which Customer is obligated to indemnify Coherent pursuant to Section 9.2.
9.2 Customer Indemnification. Customer will indemnify, defend, and hold harmless Coherent and its directors, officers, and employees from and against all Losses, arising directly from a Third Party Claim brought as a result of or in connection with: 1) any gross negligent or intentionally wrongful act of Customer; 2) any breach by Customer or Customer’s employees or agents of any of Customer’s warranties, or representations contained in this Agreement; or 3) any violation or claimed and verifiable violation of a third party’s rights resulting in whole or in part from any: (i) use or combination of the Software, Documentation and/or Maintenance Release (if applicable), by or on behalf of Customer with any hardware, software, system, network, service or other matter whatsoever that is neither provided by Coherent nor authorized by Coherent in this Agreement; (ii) information, materials or technology or other matter whatsoever directly or indirectly provided by Customer or directed by Customer to be installed, combined, integrated or used with, as part of, or in connection with the Software, Documentation and/or Maintenance Release (if applicable); or (d) use of the Software, Documentation and/or Maintenance Release (if applicable) by or on behalf of Customer that is outside the purpose, scope or manner of use authorized by this Agreement, or in any manner contrary to Coherent’s instructions or the Documentation.
9.3 Procedure. The indemnified Party will timely notify the indemnifying Party in writing that it seeks indemnification from the indemnifying Party with specific reference to the Third party Claim for which such indemnification is sought. A failure by the indemnified Party to provide such notice or information will not impair the indemnified Party’s right to indemnification hereunder except to the extent that such failure has materially prejudiced or materially delayed the indemnifying Party in the defense of the Third Party Claim. The indemnifying Party will have the right to control the defense and settlement of each such Third Party Claim, except that the indemnifying Party must obtain the indemnified Party’s prior written approval for the settlement of any such Third Party Claim (unless such settlement provides for the full and final release of the indemnified Party, does not involve the payment of any monies or admission of any wrongdoing by the indemnified Party, and does not require any action or inaction by the indemnified Party). The indemnified Party will have the right to participate in the defense and settlement of such Third Party Claim being defended by the indemnifying Party through separate counsel, at the indemnified Party’s sole expense.
9.4 Sole and Exclusive Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND COHERENT’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SOFTWARE, DOCUMENTATION, MAINTENANCE RELEASE AND/OR ADD-ON SERVICES (IF APPLICABLE)) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. LIMITATION OF LIABILITY
10.1 NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT OUR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. THIS INCLUDES LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR THE NEGLIGENCE OF OUR EMPLOYEES, AGENTS OR SUBCONTRACTORS AND FOR FRAUD OR FRAUDULENT MISREPRESENTATION.
10.2 SUBJECT TO THE PARAGRAPH ABOVE, COHERENT SHALL NOT BE LIABLE TO THE CUSTOMER FOR:
(a) ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY);
(b) ANY LOSS OF GOODWILL;
(c) ANY LOSS OF OPPORTUNITY;
(d) ANY LOSS OF DATA SUFFERED BY CUSTOMER;
(e) ANY INDIRECT OR CONSEQUENTIAL LOSSES WHICH MAY BE INCURRED BY THE CUSTOMER, IT’S AFFILIATES, DIRECTOR, EMPLOYEES OR AUTHORIZED USERS; OR
(f) ANY LOSS OR DAMAGE WHICH MAY BE INCURRED BY THE CUSTOMER, IT’S AFFILIATES, DIRECTOR, EMPLOYEES OR AUTHORIZED USERS AS A RESULT OF:
(i) ANY RELIANCE PLACED ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING IN CONNECTION WITH THE SOFTWARE, DOCUMENTATION AND/OR MAINTENANCE RELEASE (IF APPLICABLE);
(ii) ANY CHANGES WHICH COHERENT MAY MAKE TO THE SERVICES, OR FOR ANY PERMANENT OR TEMPORARY CESSATION IN THE PROVISION OF THE SOFTWARE, DOCUMENTATION AND/OR MAINTENANCE RELEASE (IF APPLICABLE) OR ANY FEATURES WITHIN THE SOFTWARE;
(iii) THE DELETION OF, CORRUPTION OF, OR FAILURE TO STORE, ANY CONTENT AND OTHER COMMUNICATIONS DATA MAINTAINED OR TRANSMITTED BY OR THROUGH THE USE OF THE SOFTWARE, DOCUMENTATION AND/OR MAINTENANCE RELEASE (IF APPLICABLE);
(iv) FAILURE TO PROVIDE COHERENT WITH ACCURATE ACCOUNT INFORMATION; OR
(v) FAILURE TO KEEP THE LOGIN CREDENTIALS OR ACCOUNT DETAILS SECURE AND CONFIDENTIAL.
10.3 THE TOTAL AGGREGATE LIABILITY OF COHERENT TO THE CUSTOMER, WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE ARISING OUT OF, OR IN RELATION TO, THIS AGREEMENT, THE SOFTWARE, DOCUMENTATION AND/OR MAINTENANCE RELEASE (IF APPLICABLE), WILL BE LIMITED TO THE AMOUNT PAID BY CUSTOMER TO COHERENT (IF ANY) DURING THE 12 MONTH PERIOD PRECEDING THE DATE OF THE FIRST CLAIM MADE BY CUSTOMER UNDER THIS AGREEMENT, UNLESS OTHERWISE MANDATORILY REQUIRED BY APPLICABLE LAW.
10.4 IF DEFECTIVE DIGITAL CONTENT THAT COHERENT HAVE SUPPLIED DAMAGES A DEVICE OR DIGITAL CONTENT BELONGING TO THE CUSTOMER AND THIS IS CAUSED BY THE COHERENT’S FAILURE TO USE REASONABLE CARE AND SKILL, COHERENT WILL EITHER REPAIR THE DAMAGE OR PAY THE CUSTOMER COMPENSATION IN ACCORDANCE WITH THIS AGREEMENT. HOWEVER, COHERENT WILL NOT BE LIABLE FOR DAMAGE THAT THE CUSTOMER COULD HAVE AVOIDED BY FOLLOWING THE COHERENT’S ADVICE TO APPLY AN UPDATE OFFERED TO CUSTOMER FREE OF CHARGE OR FOR DAMAGE THAT WAS CAUSED BY CUSTOMER FAILING TO CORRECTLY FOLLOW INSTALLATION INSTRUCTIONS OR TO HAVE IN PLACE THE MINIMUM SYSTEM REQUIREMENTS ADVISED BY COHERENT.
10.5 THESE LIMITATIONS ON OUR LIABILITY TO CUSTOMER SHALL APPLY WHETHER OR NOT COHERENT HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
11.1 Force Majeure. The obligations of the Parties under this Agreement will be suspended to the extent a Party is hindered or prevented from complying therewith because of war, acts of God, fires, storms, flood, epidemic, accidents, failure of telecommunications vendors or suppliers, government intervention or action, or any other cause whatsoever beyond a Party’s reasonable control. For so long as such circumstances prevail, the Party whose performance is delayed or hindered will continue to use all commercial best efforts to recommence performance without delay.
11.2 Relationship between the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be deemed to imply or constitute either Party as the agent or representative of the other Party, or both Parties as joint ventures or partners for any purpose.
11.3 Electronic Signatures. The Parties acknowledge and agree that this Agreement or any future documents in connection with the subject matter of this Agreement may be executed by electronic signatures, which shall be deemed to be as good as original wet-ink signatures for all purposes and shall have the same force and effect as original wet-ink signatures. Without limitation, an electronic signature shall include electronic copy of an original wet-ink signatures or electronic scanned a transmitted version (e.g. in .pdf format) of original wet-ink signatures.
11.4 Press Release. Except as expressly set forth in this Agreement or as required by the laws of any jurisdiction , neither Party will make any public announcement or press release regarding the cooperation contemplated by this Agreement without the prior consent of the other Party.
11.5 Governing Law. This Agreement, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Agreement, or its subject matter or formation, will be governed by and construed in accordance with the laws of the Delaware. The parties agree to submit to the exclusive jurisdiction of the Delaware courts.
11.6 Arbitration. Except for the right of either Party to apply to any court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute as to the interpretation, enforcement, breach, or termination of this Agreement (“Dispute”), which Dispute has been subject of a written notice by one Party to the other (“Dispute Notice”), the Parties shall attempt, for a period of thirty (30) days after the receipt by one (1) Party of a notice from the other Party of the existence of a Dispute, to settle such Dispute in the first instance by mutual discussions between the senior management of each of the Parties. If the Dispute cannot be settled by mutual discussions within the thirty (30) day period, it shall be referred to arbitration in the state of Delaware under the procedures of the Delaware Rapid Arbitration Act by one arbitrator appointed in accordance with such rules. Arbitration will be conducted in English. Judgment upon the award rendered by the arbitrator may be entered in any court of competent jurisdiction. The prevailing Party will be entitled to receive from the other Party reasonable attorneys’ fees and costs incurred in connection with any arbitration or litigation instituted in connection with this Agreement.
11.7 Non assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger, or consolidation, without the prior written consent of Coherent. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their respective successors and assigns. Any assignment in violation of the foregoing will be null and void.
11.8 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be: (a) delivered in person; (b) sent by registered mail, as appropriate; or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address as set forth in the Principal Term. Either Party may change its address for notice by notice to the other Party given in accordance with the Principal Terms. Notices will be deemed given at the time of actual delivery in person, three business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.
11.9 Waiver. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a Party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such Party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such Party’s right to take subsequent action. No exercise or enforcement by either Party of any right or remedy under this Agreement will preclude the enforcement by such Party of any other right or remedy under this Agreement or that such Party is entitled by law to enforce.
11.10 Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the Parties will endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the Parties fail to agree on such an amendment, such invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.
11.11 Confidentiality of Agreement. Neither Party will disclose any terms of this Agreement to any third Party without the consent of the other Party, except as required by applicable law.
11.12 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement.
11.13 Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.
11.14 Language. If this Agreement is executed in more than one language, then only the English version is binding on the Parties.
11.15 No Third Party Rights. No one other than a Party to this Agreement, their successors and permitted assignees, shall have any rights under the Contract (Rights of Third Parties) Ordinance to enforce any term of this Agreement.
11.16 Integration. This Agreement, along with the Principal Terms and any schedules attached thereto, contains the entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings, and agreements, either oral or written, between the Parties with respect to said subject matter. No terms, provisions, or conditions of any purchase order, acknowledgement, or other business form that Coherent may use in connection with the acquisition or licensing of the Software will have any effect on the rights, duties, or obligations of the Parties under, or otherwise modify, this Agreement, regardless of any failure of Coherent to object to such terms, provisions, or conditions. This Agreement may not be amended, except by a writing signed by both Parties.
11.17 Competitor Exclusions. The customer is excluded from using specified third-party providers who are fair and reasonable competitors of Coherent for software outsourcing support for the PoS platform for the duration of the licensed contract agreement. Specified competitors include (but not limited to): DXC Technology, eBao Technology, C2L Biz, Nano Technology, Majesco and Accenture.
Last Updated: December 13, 2021