This master subscription agreement is concluded by and between Supernova.io INC, Delaware entity number: 7171181, VAT ID/EIN: 83-2789008, Registered office: 1111B S Governors Ave STE 6495, Dover, Delaware 19904, United States of America as the “Provider” and the user of Service including any content and services offered through https://www.supernova.io/ as the “Customer”.
1.1. In addition to the terms defined elsewhere in the Agreement, the following terms have the meanings set forth in this Article 1.1:
1.2. Customer hereby confirms that it received access to, read, and agrees with the content of the following electronic documents (collectively the “Documentation”). Documentation constitutes an integral part of the Agreement:
1.3. Provider’s email address for reporting of technical issues/support is support@supernova.io
2.1. Subject to and conditioned on Customer’s and its Users’ compliance with the terms and conditions of this Agreement as well as with the Terms of Third Parties, the Provider shall grant the Customer access and right to use the Service. Customer shall pay the agreed price for granted access and right to use the Service.
2.2. Provider shall fulfill its obligation to grant access and right to use the Service to the Customer by granting access to the Service to the master account email address specified in Annex 1 (the “Master Account”) and sending access data to the Master Account e-mail address specified in Annex 1. Provider shall do so within 7 days after the price set forth in Annex 1 is paid in full by the Customer.
3.1. The right to use the Service is non-exclusive, non-transferable, worldwide (not limited by territory), limited by Term (as defined in Article 14.1) and limited for use solely for Customer’s internal business operations as specified in the Documentation.
3.2. The right to use the Service is further limited by the number of Users specified in Annex 1. By using the Master Account, the Customer may create additional User accounts (the “User Accounts”) up to the number of Users specified in Annex 1. Each User Account can be used by only one User; the actual number of Users may not exceed the limit. If the number of Users is not actually utilized, no refund is applicable.
3.3. Parties can agree to decrease the number of Users and the price for the subsequent Renewal Term. If the Customer wishes to increase the number of Users beyond the scope specified in Annex 1, it shall contact the Provider. Provider will subsequently provide the Customer with a price offer for the increase in the number of Users. Upon the Customer’s acceptance of the price offer, the Provider shall issue an invoice to the Customer for the increased number of Users and the Customer shall pay the invoiced price. User Accounts up to the increased number of Users may be created by the Customer using the procedure set forth in Article 3.3. after the invoiced price is paid in full.
3.4. For the avoidance of any doubt, the limitation of the right to use the Service up to the number of Users specified in Annex 1 or further increased according to Article 3.4. shall not apply to so called viewers (the “Viewers”), who can join and view the Customer’s workspace as permitted by the Service but cannot use the full functionalities of the Service. The Customer may invite Viewers up to the number of Viewers and within other limits specified in Annex 1; Viewers shall not be regarded as Users.
3.5. Customer may not use the Service in a manner that could compete with the Provider or in a manner that could in any way harm the Provider.
3.6. Nothing in this Agreement, except as provided in Article 7.2, grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to, the Service, Provider materials (including Documentation, other information and documents, materials, works, and other content, methods, processes, software, plans, or reports, that are provided or used by Provider in connection with the Service or otherwise comprise or relate to the Service), or third-party materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Provider materials, and the third-party materials are and will remain with Provider and the respective rights holders in the third-party materials.
4.1. Software is provided as a Service and runs on third-party infrastructure; the Customer will
not obtain a copy of the Software that the Customer would otherwise load to its own
computer or server. No source, machine, or object code to Software will be made available
to Customer.
4.2. Customer shall ensure that the devices and internet browsers from which the Service will be
accessed and the Customer’s Internet connection meet the current system and other
technical requirements (including necessity to install plugins or other necessary software of
third parties) specified in the Documentation. The Documentation may include other
technical parameters for use of the Service. The Customer must comply with all such
technical requirements when using the Service.
4.3. Customer is aware that the Documentation and the system or technical requirements may
change from time to time as a result of Service updates. The Provider does not bear any
responsibility for errors that arise from non-compliance with the current Documentation
and system or technical requirements.
4.4. Provider is constantly innovating in order to provide the best possible experience for its
clients. The Customer acknowledges and agrees that the form and nature of the Service
may change from time to time. The Provider shall inform the Customer in advance about
any changes in the Service that may have a negative impact on the integrity of data and
projects stored by the Customer in the Service; in other cases, the Service may be changed
without prior notice. The Provider represents and warrants that in no event shall the Service
be diminished or degraded in its essential functions as a result of any innovation by the
Provider.
4.5. Customer shall back up all data that was uploaded as an input in the Service. The Provider
is not liable for loss or damage to the data.
4.6. Customer must not:
4.7. Provider is entitled to monitor and control the number of Users who log in to the Service and
the manner in which they use the Service.
4.8. Customer shall ensure that all Users are familiar with the terms of use of the Service before the Users start using the Service. Customer is responsible for any breach of the terms of use of the Service by any person to whom it makes the Service or User Account available as if the Customer had breached the Agreement itself.
4.9. Customer must keep access data to User Accounts confidential and protect such data from disclosure, publication, and / or misuse by third parties. The Customer shall without undue delay, but no later than within 24 hours, inform the Provider about any and all actual or suspected loss, theft, or misuse of access data to User Accounts and shall take appropriate action (e.g., ask the Provider to block the access data).
4.10. Customer is obliged to provide the Provider with cooperation for the performance of the Agreement, at any time upon request and without undue delay. In particular, the Customer shall without undue delay, but no later than within 3 days of the request. If the Customer fails to provide the cooperation in a proper and timely manner, the Provider cannot be in default with performance of the Agreement. All deadlines for the Provider's performance shall be extended by the period of Customer’s default in providing cooperation under this Article, and if such delay continues for more than 10 days, the Provider may suspend performance of the Agreement. The rights agreed in this Article shall not exclude other rights of the Provider.
4.11. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.
5.1. In addition to the right to use the Service, the Provider may also provide the Customer with other services (hereinafter “Other Services”), if any, specified in Annex 1.
5.2. If Other Services specified in Annex 1 are needed, the Customer shall contact the Provider. The Provider will subsequently provide the Customer with an offer specifying all the relevant details (price, term, etc.). Customer shall accept or reject the offer within 5 days of the Customer’s receipt of the offer. Upon acceptance, the offer becomes a binding order.
5.3. Provision of Other Services may also be agreed orally or otherwise at a joint meeting of the Parties. In such case, the Provider shall draft written minutes of the contents of the agreement on provision of Other Services and send it to the Customer, e.g. by e-mail to the Customer's contact person. If the Customer agrees with the minutes, it shall sign them and send them back to the Supplier in writing (e.g. by e-mail) or at least confirm them with a reply which makes their content a binding order. Customer may raise any objections to the minutes within 5 days of their dispatch. If the Customer does not comment on the minutes within this period, the Customer accepts them and the content of the minutes becomes a binding order.
5.4. Unless the Parties expressly agree otherwise, the Provider shall commence provision of Other Service only after the price for their provision has been paid in full.
6.1. The price for the number of Users of the Service for the Initial Term is specified in Annex 1. The Provider shall issue an invoice for the price for the Initial Term within fourteen (14) days from the Effective Date of this Agreement.
6.2. Provider shall issue an invoice for the price for the Renewal Term thirty (30) days before the expiration of the then-current Term.
6.3. Provider is entitled to change the price for next Term (e.g., in response to inflation). Provider shall notify the Customer of the change by e-mail or via notification in the Service at least thirty (30) days prior to the expiration of the then-current Term. Unless the Customer notifies the Provider according to Article 11.2. that it wishes to terminate the Agreement, the Customer agrees that the notified price change shall apply for the Renewal Term.
6.4. Provider shall issue an invoice for the price for any Other Services within fourteen (14) days after the binding order for Other Services is made.
6.5. Prices do not include value added tax (VAT), sales, use, transaction privilege, gross receipts, cash collections, excise, goods, services, transfer, or similar taxes, duties, customs, tariffs, imposts, or any surcharges or escheat requirements (collectively, the “Taxes”).
6.6 All Taxes are borne by the Customer. Provider is entitled to "gross up" or increase any payment to the Provider for such Taxes and the Customer is obliged to pay such Taxes. Customer shall apply all reasonable efforts to ensure that Provider cannot be held liable for any Taxes and costs or damages thereto, shall promptly inform Provider of any such liability and shall provide Provider with all relevant information and documentation in that respect.
6.7 Invoices are due within the period specified in Annex 1 unless the Parties agree on a different maturity period in case of an individual invoice.
6.8. Customer shall pay the invoices to the bank account specified in the invoice, using all the listed payment identifiers (e.g., variable symbol, constant symbol, etc.).
6.9. All invoices will be sent to the invoicing e-mail address of the Customer specified above.
6.10. In the event that the Customer is in default with payment of any amount due: (a) the Provider may charge the Customer liquidated damages at the rate of 0.05% of the amount due for each commenced day of delay until the same is paid in full; (b) all deadlines for performance of the Provider's obligations shall be extended by the period of delay; and (c) the Provider may postpone the grant of access to the Service, to block access to the Service, to suspend the right to use the Service, suspend provision of Other Services, or otherwise suspend its performance under the Agreement, until all amounts due have been paid. The Provider is not liable for any damage that may result to the Customer.
7.1. When using the Service, the Customer may choose to create and save various data (e.g., design templates) to the Provider cloud storage. Except as expressly stipulated in Agreement and also except for the limited rights that are necessary for the Provider to store, backup, or transfer the Customer’s data when necessary for the Provider to do so, the Customer does not grant the Provider any ownership over the contents of the Customer’s design data or over its intellectual property included in the contents or design data. Customer is solely responsible for protecting and enforcing any rights related to such content, and the Provider has no obligation to do so on the Customer’s behalf.
7.2. To enable the Customer to create User-Created Exporters, the Provider grants the Customer a non-exclusive, non-transferable license to use the components, data model, and all exportable functionalities which are available in Standard Exporters (the “Resources“). Customer may use the Resources freely, but under no circumstances shall the Customer use the Resources in such manner that would constitute economic or any other competition to the Provider or that could harm the Provider. The Provider has no responsibility for any Exporters even when they are published on Provider‘s subdomains.
7.3. Provider does not claim any ownership rights in the User-Created Exporters and the Customer can use, distribute, and publish the User-Created Exporters and their source codes (e.g., by posting them publicly on GitHub) at its own will and without restrictions (except for rules which are protecting the Software as a whole under Article 7.4.). However, the moment any User-Created Exporter becomes publicly available, regardless of the method of its publication or person that published it, the Customer hereby grants the Provider a non-exclusive license (meaning the Customer is free to license User-Created Exporters to anyone else in addition to the Provider) to use, reproduce, distribute, lease, lend, sell, prepare derivative works of, combine with other works, exhibit, perform, and publish the User-Created Exporter. The license is worldwide, perpetual, royalty-free (meaning that the Provider is not required to pay the Customer for the use of the User-Created Exporters), sublicensable, and irrevocable. The Customer specifically agrees that the Provider may incorporate the User-Created Exporters into the Service and distribute them together with the Service for consideration. The Customer further agrees not to restrict or inhibit the use of the User-Created Exporters by any other person. The Provider is not obliged to use the license.
7.4. Customer can use software of third parties (including free and open-source software) to create User-Created Exporters only under the following conditions. The Customer, but not the Provider, is liable for any damage caused and is responsible for the breach of licensing terms of any third-party works and for the damage caused by the breach of the following conditions: The Customer is strictly prohibited from publishing or otherwise making available User-Created Exporters that contain works of third parties (including dynamically linked libraries) if the Customer does not have sufficient authorization to do so, or if such publication or availability would: (a) entail communicating the source code of the Software or the Resources to third persons; (b) require further conveyance or distribution of the work under a particular license, or (c) lay down similar requirements incompatible with the Provider´s licensing terms for end-users (i.e., a proprietary, non-transferable license that does not allow sublicensing, gaining source code, modifications, or derivative works). Customer shall not use, in particular, but not limited to, any works licensed under general public licenses that contain copyleft clauses, such as any version of GNU General Public License (GPL), GNU Lesser General Public License (LGPL), GNU Affero GPL, and other licenses that contain terms incompatible with this Article.
7.5. Customer is solely responsible for any content and outputs that the Customer and its Users create while using the Service and for the consequences of use of such content and outputs. Provider takes a passive and neutral approach to content and outputs created and published by the Customer and its Users while using the Service. This means that the Provider generally does not monitor the content or actively search for facts or circumstances that would indicate that it is illegal. Provider may on its own initiative conduct voluntary investigations or take other measures to detect, identify, remove, or disable access to illegal content. Provider may also take necessary measures to ensure compliance with legal requirements or orders from regulatory authorities. However, the Provider is not responsible for the illegality, inaccuracy, or reliability of user content.
7.6. Provider accepts notices about the appearance of content within the Service that Users (or any other third party) considers to be illegal. Such notice may be sent to security@supernova.io.
7.7. Provider enables the submission of notice to contain all of the following information:
7.8. If the notice contains the electronic contact information of the person submitting it, the Provider will send an acknowledgement of receipt of the notice without undue delay. Provider will also inform such person without undue delay of its decision with respect to the information to which the notice relates and provide information on further legal remedies available to such person in relation to that decision. If the Provider becomes aware of unlawful activity, illegal content or content that is inconsistent with the Agreement, the Provider may take action to remove or disable access to it. Alternatively, the Provider may impose restrictions on the User or the Customer by assigning a lower search ranking to the content, suspending, or terminating the Service to such User or Customer, or suspending or terminating User's or Customer's account. In such case, the Provider will provide all affected users (If the Provider has the respective electronic contact information) with a clear and specific justification for such restriction. However, if the Provider assesses the content to be compliant with the law and the Agreement, the Provider may also decide not to act against such content.
8.1. Confidential information (the “Confidential Information”) is non-public information of a commercial or technical nature, including trade secrets, access details to User Accounts, information on price, insurance, clients, business partners, employees, business plans, and other non-public information that the average person would consider to be confidential in view of its content or the manner in which it was disclosed.
8.2. Confidential Information shall not include information that is (a) in the public domain at the time of disclosure or enters the public domain without breach of this Agreement, (b) known to the receiving Party prior to the disclosure or is independently developed by the receiving Party, (c) obtained by the receiving Party in good faith from a third party not under an obligation of secrecy to the other Party.
8.3. Each Party shall preserve the confidentiality of any Confidential Information received from the other Party. The receiving Party is entitled to use the Confidential Information only in accordance with this Agreement and solely for the purpose of performance of Parties' obligations under the Agreement. The receiving Party shall take reasonable care to protect Confidential Information from any loss or unauthorized disclosure.
8.4. The receiving Party may disclose Confidential Information to comply with applicable laws or order of a court of competent jurisdiction, regulatory authority, or governmental department or agency; provided, however, the receiving Party shall give prior written notice of such disclosure to the disclosing Party (unless such notice is prohibited by law or otherwise commercially impracticable).
9.1. Provider warrants (the “Limited Warranty”) that as of the Effective Date, the Service: (a)
materially operates in conformance with the Documentation; and (b) does not contain any
virus or other malicious code that would cause the Service to become inoperable or
incapable of being used in accordance with the Documentation.
9.2. Limited Warranty does not apply and becomes null and void if the Customer breaches any
provision of this Agreement, or if the Customer, any User, or any other person provided with
access to the Service by the Customer or User, whether or not in violation of this Agreement:
(a) uses the Service in connection with any software not specified in the Documentation; (b)
modifies or damages the Service; or (c) misuses the Service, including any use of the
Service other than as specified in the Documentation.
9.3. If the Service fails to comply with the Limited Warranty and such failure is not excluded from
Limited Warranty pursuant to Article 8.2 (the “Defect”), the Provider shall, subject to
Customer promptly notifying Provider in writing of such Defect, at its sole option within 45
days of the notification of the Defect either: (a) repair or replace the Service, provided that
Customer provides Provider with all information Provider requests to resolve the reported
Defect, including sufficient information to enable the Provider to recreate such Defect; (b)
modify the Service so as to provide the Customer with a functionally equivalent, compatible,
and non-defective service; or (c) refund the unused pro rata portion of price paid for the
Service, subject to Customer's ceasing all use of the Service. The remedies set forth in this
Article are Customer's sole remedies and Provider's sole liability under the Limited Warranty.
10.1. Provider shall indemnify the Customer from and against any losses, damages, liabilities, and
costs (the "Losses") incurred by Customer resulting from any third-party claim, suit, action,
or proceeding (the "Claim") that the Service or use of the Service in accordance with this
Agreement, infringes such third party's patents or copyrights, provided that such Claim is
finally awarded by a competent court and the Customer promptly notifies the Provider in
writing of the Claim, cooperates with Provider, and allows Provider sole authority to control
the defense and settlement of such Claim.
10.2. If such a Claim is made or appears possible, Customer agrees to permit Provider, at
Provider's sole discretion, to (a) modify or replace the Service, or component or part thereof,
to make it non-infringing, or (b) obtain the right for Customer to continue using of the
Service. If Provider determines that none of these alternatives is reasonably available,
Provider may terminate this Agreement, in its entirety or with respect to the affected
component or part, effective immediately on written notice to Customer. The remedies set
forth in this Article are Customer's sole remedies and Provider's sole liability for Claims that
the Service or use of the Service infringes or misappropriates third party rights.
10.3. Provider’s indemnification obligation pursuant to previous sections of this Article 9 will not
apply to the extent that the infringement arises from: (a) use of the Service in combination
with data, software, service, hardware, equipment, or technology not provided by Provider or
authorized by Provider in writing; (b) modifications to the Service not made by Provider; or
(c) any third-party products provided with or incorporated into the Service.
10.4. Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider from and
against any Losses including attorneys' fees resulting from any Claim based on Customer's
or any User's: (a) negligence or willful misconduct; (b) use of the Service or Documentation
in a manner not authorized or contemplated by this Agreement; (c) use of the Service in
combination with data, software, hardware, equipment or technology not provided by
Provider or authorized by Provider in writing; (d) modifications to the Service not made by
Provider; (e) incorporation of User Created Exporter into the Service; or (f) other breach of
this Agreement. Customer shall furthermore indemnify, hold harmless, and, at Provider's
option, defend Provider from and against any Taxes including penalties, interests, and any
costs or damages related to them.
10.5. Customer may not settle any Claim against Provider unless such settlement completely
and forever releases Provider from all liability with respect to such Claim or unless Provider
consents to such settlement, and further provided that Provider will have the right, at its
option, to defend itself against any such Claim or to participate in the defense thereof by
counsel of its own choice.
11.1. Provider shall maintain insurance policies providing at least the coverage of Provider’s currently agreed insurance. Provider’s current insurance certificate is attached as Annex 4 and has been provided to the Customer prior to executing this Agreement. Provider will provide Customer with a currently effective insurance certificate upon request.
11.2. EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN ARTICLE 9.1, THE PROVIDER HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SERVICE AND OTHER SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ESPECIALLY ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE OR OTHER SERVICES OR THE RESULTS OF THE USE THEREOF, WILL MEET THE CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION (UNLESS OTHERWISE AGREED IN ANNEX 2), ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, SYSTEM, OR SERVICES, OR BE SECURE, ACCURATE, COMPLETE, OR ERROR FREE. SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE AND SHALL HAVE ONLY THE CHARACTERISTICS SPECIFIED IN THE AGREEMENT AND DOCUMENTATION. CUSTOMER WAIVES ALL RIGHTS FROM DEFECTIVE PERFORMANCE THAT ARE NOT SPECIFICALLY AGREED HEREUNDER. ALL MATERIALS OF THIRD PARTIES ARE PROVIDED “AS ARE” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY MATERIALS OF THIRD PARTIES ARE STRICTLY BETWEEN THE CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH MATERIALS OF THIRD PARTIES.
11.3. IN NO EVENT SHALL EITHER PARTY, ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE TO THE OTHER PARTY, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF AGREEMENT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICE; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SERVICE SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, or (e) AMOUNTS EXCEEDING THE PRICE PAID TO PROVIDER BY THE CUSTOMER FOR USE OF THE SERVICE UNDER THIS AGREEMENT DURING 12 MONTHS PERIOD PRIOR TO THE OCCURRENCE OF SUCH LOSS OR DAMAGE. IN EACH CASE, THE LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF THE CIRCUMSTANCES, OR WHETHER THE OTHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.4. Exclusions and limitations in Articles 11.2 and 11.3 do not apply to liability for Party’s gross negligence or willful misconduct, and to obligations to make payment under this Agreement.
11.5. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, THE PROVIDER WILL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES), DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH MATERIALS OF THIRD PARTIES.
11.6. Furthermore, the Provider may allow the use of its AI tools or Materials of Third Parties focused on AI tools (for example, services for editing and checking text, adding code, generating graphics or videos, etc.) within the Service. If the Customer decides to turn on and use such tools within the Service, the Customer expressly agrees and acknowledges that (a) they are provided “as are” without and warranties or any liability of the Provider for their use, (b) that outputs of such AI tools may not be sufficiently accurate or accurate at all, (c) the outputs may not be copyrightable in some cases and therefore are created without a copyright license.
12.1. The Parties shall communicate with each other in English.
12.2. Contact persons are specified in the header of the Agreement. Any change in the contact persons will be notified by the concerned Party in writing without undue delay.
12.3. The requirement of written form is deemed to be met if the electronic text with a simple electronic signature is delivered to the e-mail address of the contact person of the other Party, or by other electronic means agreed by the Parties during the Term of the Agreement. The electronic message is considered delivered on the day following the day on which the electronic message was sent.
13.1. During provision of Service, personal data of Users may be processed. When activating Master account, the processing of personal is governed by Privacy Policy of the Provider. Processing of personal data of Users for purposes stipulated by the Provider is also governed by Privacy Policy of the Provider. However, the Customer is obliged to inform User about such purposes of processing of personal data and for purposes stipulated by Customer.
13.2. Provider may also store personal information about Users and work with personal information about User based on the Customer instructions, for purposes stipulated by the Customer and in accordance with this Agreement. In this case, the Provider will process personal data as data processor and processing is governed by Annex 3 – Data processing terms.
14.1. Agreement shall commence on the date of the last signature below (the “Effective Date”) and remain in full force and effect for the period of 1 year (the “Initial Term”). Agreement shall be automatically (and repeatedly) extended and renewed for additional period of the same length as the Initial Term (each, a “Renewal Term” and the Renewal Terms collectively with the Initial Term shall be referred to herein as the “Term”), unless either Party gives the other Party notice of non-renewal in accordance with Article 14.2.
14.2. Notice of non-renewal must be made in writing and delivered to the other Party prior to the expiration of the Initial Term or any Renewal Term, as the case may be.
14.3. Customer may terminate the Agreement at any time without stating a reason effective upon delivery of written notice of termination to the Provider. However, unless expressly agreed otherwise, the Provider provides no refunds. Upon any expiration or termination of this Agreement, all prices that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable and Customer shall pay such prices. Provider shall refund to the Customer unused pro rata portion of price paid for the Service only if the Agreement is terminated due to material breach of the Agreement by the Provider.
14.4 In addition to any other express termination right set forth elsewhere in this Agreement: (a) either Party may terminate this Agreement for material failure by the other Party to comply with the terms of this Agreement (provided such breach is not cured within thirty (30) days after written notice of the breach is received from the other Party); (b) either Party may terminate this Agreement immediately in the event the other Party seeks the protection of any bankruptcy court, becomes insolvent, or makes an assignment for the benefit of creditors; (c) Provider may terminate this Agreement, effective on written notice to Customer, if Customer fails to pay any amount when due hereunder, and such failure continues more than 30 days after Provider’s delivery of written notice thereof; or if Customer breaches any of its obligations under Article 4.6.
14.5. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: (a) all rights, licenses, consents, and authorizations granted by either Party to the other hereunder will immediately terminate; (b) Customer shall cease use of the Service and the Provider may disable Customer’s and User’s access to the Service; (c) each Party shall return or at the election of the disclosing Party destroy and erase all Confidential Information and all other material received from such other Party, and provide the other Party with a signed written statement certifying that it has complied with the foregoing obligations.
14.6. Provisions set forth in the following Articles will survive any expiration or termination of this Agreement: 7.3 (license to exporters), 10.4 (Customer indemnification), 11 (limitation of liability), 14 (Term and termination), and 15 (Final provisions). The duty of confidentiality (Article 8) lasts for as long as the Confidential Information is protected as a trade secret, otherwise for a period of five years from the date of termination of the Agreement.
15.1. Agreement and all legal relations arising from it or related to it are governed by the law of Delaware with the exclusion of rules on conflict of law.
15.2. Parties agree to submit to the exclusive jurisdiction of the courts of Delaware to resolve any matters arising from this Agreement. Notwithstanding anything contained in this Agreement, the Provider shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
15.3. Agreement may not be assigned by either Party without the prior written consent of the other Party; provided that either Party may assign this Agreement as a whole without the prior written consent of the other Party to any affiliate or other entity of the Party that controls, is controlled by, or is under common control with the Party. Any purported assignment in violation of this Article is void. Such written consent, if given, shall not in any manner relieve the assignor from liability for the performance of this Agreement by its assignee.
15.4. If a Party's obligations are interrupted or interfered with by an event beyond its reasonable control – including but not limited to: (a) fire, flood, casualty, lockout, strike, labor conditions, unavoidable accident, civil disturbance, terrorism, war, embargoes, cyber-security attacks including DDoS, national calamity, epidemic, pandemic, mechanical or other breakdown of electrical or sound equipment or plant, riot, act of God; (b) any enactment of law; (c) any order of any legally-constituted authority; or (d) any other similar cause -the obligations of the Parties hereto shall be suspended during the period of such interruption or interference, and a period of time equivalent to the period or periods of suspension shall be added to the time of performance of this Agreement, provided that if (x) such time is reasonably certain to exceed 90 days, or (y) such delay in fact exceeds 90 days, then either Party may, at its election, terminate this Agreement upon 10 days written notice to the other Party. The events of Force Majeure as described in this Article shall not affect payment obligation of any of the Parties.
15.5. If any provision of the Agreement is or becomes invalid, null, void, or unenforceable, the other parts of the Agreement are not affected and shall remain in full force and effect as if the invalid or unenforceable provision had never been a part of this Agreement. The Parties agree to replace these provisions with valid, effective, and enforceable provisions, which are not null and void, of the same commercial and legal significance within 14 (fourteen) days from the delivery of the written request of the other Party.
15.6. Failure of either Party to complain of any default by the other Party or to enforce any of such Party’s rights, no matter how long such failure may continue, will not constitute a waiver of that /Party’s rights under this Agreement. No waiver of any provision of this Agreement shall constitute a waiver of any other provision or a waiver of the same provision at any later time.
15.7. Provider may identify the Customer as a customer of the Provider and use Customer’s logo and trademarks on Provider’s website.
15.8. Agreement and any attached Annexes constitute the entire agreement between the Parties and supersedes all prior oral and written agreements. Any attached Annex is hereby incorporated by reference into this Agreement and is governed by the provisions of this Agreement. Agreement may be amended only in a writing signed by both Parties.
15.9. List of Annexes:
1.1. “Available” means that the Service is available for access and use by Customer over the
Internet and operating in material accordance with the Documentation.
1.2. “Service Level Failure” means a material failure of the Service to meet the Availability
Requirement.
2.1. Subject to the terms and conditions of the Agreement, Provider will use commercially
reasonable efforts to make the Service Available at least 99% of the time as measured over
the period of 365 consecutive days starting with the first day of the Term (each such period,
a “Service Period”), excluding unavailability as a result of any of the Exceptions described
below (the “Availability Requirement”).
2.2. For purposes of calculating the Availability Requirement, the following are “Exceptions” to
the Availability Requirement, and neither the Service will be considered un-Available nor any
Service Level Failure be deemed to occur in connection with any failure to meet the
Availability Requirement or impaired ability of Customer to access or use the Services that is
due, in whole or in part, to any:
3.1. In the event of a Service Level Failure, Provider shall issue a credit to Customer in the amount
of 10 % of the monthly price (pro rata portion of the price in case of yearly subscription term)
for the Service due for the Service Period in which the Service Level Failure occurred (each a
“Service Credit”), provided that Provider has no obligation to issue any Service Credit unless
the Customer:
3.2. Any Service Credit payable to Customer under this Agreement will be issued to Customer in
the subscription term following the subscription term in which the Service Level Failure
occurred. If no other subscription term shall follow due to termination of the Agreement, the
Service Credit is payable to Customer based on an invoice issued by the Customer within 1
month from the termination of the Agreement.
3.3. This Article 3 sets forth Provider’s sole obligation and liability and Customer’s sole remedy
for any Service Level Failure.
4.1. Provider shall provide Customer with Service Support. Service Support means support of normal use of the Service and includes provision of information contained in the Documentation.
4.2. Customer may raise support queries by e-mail sent to support@supernova.io.
4.3. Provider will initially respond to new Service Support queries within 2 business days during excluding weekends and public holidays.
These Data Processing Terms (hereinafter also “DPT”) constitute a part of the Agreement which
was concluded by the Customer with the Provider.
By concluding the Agreement, the Customer confirms that the Customer read and agrees with this
DPT.
1.1. Under the Agreement, the Provider provides Software as a Service solution to the Customer.
The Customer will be enabled to access the Software and use its functionalities online. For
the purpose of this DPT, personal data means personal data of data subjects, which are in
particular Users and other data subjects whose personal data have been processed by the
Provider for the purpose of providing the Software to the Customer and fulfilling other
obligations under the Agreement (hereinafter also "Personal Data").
1.2. This DPT regulates the conditions for the processing of personal data by the provider as a
processor of personal data within the meaning of Article 28 of Regulation (EU) 2016/679 of
the European Parliament and of the Council on the protection of natural persons with regard
to the processing of personal data and on the free movement of such data, and repealing
Directive 95/46/EC (General Data Protection Regulation or “GDPR”).
2.1. Parties acknowledge and agree that:
2.2. If the Customer acts as a processor, he/she guarantees to the Provider that the competent controller has approved his instructions and actions in connection with Personal Data, including the mandate of the Provider as another processor.
2.3. Provider will process Personal Data only in accordance with applicable law and for the
purpose of providing the Software to the Customer, and as further stated in other written
instructions given by the Customer.
2.4. By written instruction pursuant to the Article 2.3. of this DPT is also considered an instruction
made by e-mail stipulated in the header of the Agreement or by the Software.
3.1. Provider will process Personal Data only for the duration of the Agreement or until all
Personal Data are deleted by the Provider according to this DPT.
4.1. For the purposes of providing the Software to the Customer, the Provider will process
Personal Data in electronic form, while the subject-matter of the processing will be viewing
Personal Data, using Personal Data to create User profile, storage of Personal Data, building
and maintaining design systems collaboratively with unprecedented ease and other
activities necessary for providing Software and services that Software allows under the
Agreement.
4.2. The purpose of the processing of Personal Data is the provision of the Software and ensuring
the functionalities of the Software.
5.1. The following Personal Data will be processed in accordance with this DPT:
6.1. Personal Data will cover the following categories of data subjects:
7.1. Provider declares and undertakes to:
7.2. If the Provider receives any request from the data subject in relation to Personal Data when
processing Personal Data as a data processor, the Provider shall inform the data subject to
contact the Customer directly with the request. The Customer is responsible for handling
such request. The Provider undertakes to provide the Customer with all the cooperation
necessary for the settlement of the rights of data subjects.
7.3. Customer agrees that the Provider will involve other processors for the processing of
Personal Data and, if these other processors are involved, ensure that they comply with the
same data protection obligations as those set out in this DPT. Before involving another
processor, the Provider is obliged to inform the Customer, who may object in writing to the
involvement. If the Customer will not object the involvement of another processor within one
week, the Provider will involve this processor to the processing of Personal Data.
7.4. Customer expressly agrees that the Provider will involve in the processing the Provider's
workers who work for the Provider on the basis of a mandate agreement or similar
agreement, Amazon and Google which provide data servers if the Customer decides to
store the data on servers provided by the Provider and other providers of analytics tools,
such as Stripe, Inc., Auth0, Inc., Twilio Inc., Segment.io, Inc., Crisp IM SARL. Description of this
tools is included in the Privacy Policy of the Provider.
7.5. Provider is obliged to enable the Customer, or the person authorized by him/her to check
(including audit or inspection) compliance with this DPT, in particular the obligations for the
processing of Personal Data resulting therefrom and will contribute to these checks
according to reasonable instructions of the Customer or the controlling person. The
Customer shall bear all costs associated with this audit.
7.6. Customer is obliged to send any request for an audit exclusively to the e-mail address of
the Provider stipulated in the header of the Agreement. Upon receipt of the audit request,
the Provider and the Customer agree in advance on: (a) the possible date of the audit,
security measures and how to ensure compliance with confidentiality obligations during the
audit, and (b) the expected beginning, scope, and duration of the audit. In the event that no
agreement is reached within 30 days from the date of submission of the application, the
terms of the audit shall be determined by the Provider.
7.7. Provider may object in writing against any auditor who has been entrusted with the
Customer, if the auditor is not sufficiently qualified in the opinion of the Provider, is not
independent, is in a competitive position with the Provider or is otherwise obviously
unsuitable. On the basis of the objection raised, the Customer is obliged to appoint another
auditor or to carry out the audit himself.
7.8. Customer is responsible for fulfilling all obligations in relation to the processing of Personal
Data, in particular for properly informing data subjects about the processing of Personal
Data, obtaining consent to the processing of Personal Data, if necessary, processing
requests of data subjects about the realization of their rights (such as the right to
information, access, rectification, erasure, restriction of processing, object, etc.).
8.1. Provider has taken the following measures and undertakes to maintain them to ensure the
security of the processing of Personal Data throughout the processing process.
8.2. Organizational measures:
8.3. Provider undertakes to take such technical, personal, and other necessary measures to
prevent unauthorized or accidental access to Personal Data, their change, destruction or
loss, unauthorized transfers, their other unauthorized processing, or other misuse of Personal
Data.
8.4. Provider undertakes to take appropriate technical and organizational measures in order to
ensure a level of security commensurate with the risk, taking into account the state of the
art, nature, scope, context, and purposes of processing as well as different probable risks to
the rights and freedoms of individuals.
8.5. Such appropriate measures include, in particular, the pseudonymization and encryption of
Personal Data, the ability to ensure the continued confidentiality, integrity, availability and
resilience of processing systems and services, the ability to restore the availability of and
access to Personal Data in the event of physical or technical incidents, the process of
regular testing, assessment and evaluation of the effectiveness of the technical and
organizational measures in place to ensure processing security.
8.6. Provider will secure the Software from cyber-attacks in the most appropriate way, taking
into account the nature of Personal Data and the state of the art.
9.1. After the termination of the Agreement, regardless of the manner and reason for its
termination, the Provider will turn Customer’s User’s to Free tier. In case that customer
required it, the Provider within 6 (six) months delete all Personal Data and delete all access
data to the Software and other communication tools, except in cases where the storage of
Personal Data is required by law, or in cases where such User already created his/her User
profile, before the Agreement was concluded or the User wants to keep his user profile. In
that case, the Personal Data will be processed according to the Privacy Policy of the
Provider.
10.1. Provider is entitled to charge the Customer for the costs incurred in accordance with any request referred to in the Article 7 of this DPT or by the control referred to in the Article 7.5. of this DPT. These costs will be charged by the Provider to the Customer by rules stipulated in the Article 5 of the Agreement.
10.2. Provider is not liable for any direct or indirect damage, especially lost profits, special or incidental damage that the Customer incurred in connection with the processing of Personal Data, even if the Customer notifies the provider in advance that the damage could occur. The Provider is not liable for non-material damage incurred by the Customer.
10.3. Should the Provider still be obliged to pay any compensation to the Customer, this obligation is limited to a maximum of 3% of the total annual price.
