Terms and conditions (“T&C”)

ins-pi GmbH ("Supplier") only provides a License of use of the applications Designer, UPM-X, and/or FREELUCY (collectively "App”) to its customers on the condition that customers accept all of the terms contained in this T&C Agreement and any applicable Statement of Work. Certain terms not applicable to FREELUCY will be identified below.

This T&C Agreement (“Agreement”) is entered into by and between Supplier and Customer including its Affiliates (“Customer”) and Customer’s Suppliers. Supplier and Customer are each a “Party” and collectively the “Parties” to this Agreement.

ANY CHANGES TO THESE STANDARD T&C MAY CAUSE A PRICE INCREASE.

DEFINITIONS

For the purposes of the Agreement, the capitalized terms below shall have the following meanings:

“Affiliate” of a Party shall mean an entity:

1. which is directly controlling such Party;
2. which is under the same direct ownership or control as such Party; or
3. which is directly owned or controlled by such Party.

For these purposes, an entity shall be treated as being controlled by another if that other entity has fifty-one percent (51%) or more of votes in such entity, is able to direct its affairs and/or to control the composition of its boards of directors or equivalent body.

“Agreement” shall mean these Application Terms and Conditions in addition to any Statement of Work (SOW) that may be entered into by the Parties for consulting and other services rendered by Supplier.

“App License” refers to the License provided by Supplier for the subscribed to App allowing Customer the right to

1. install the Supplier Applications on a single authorized production instance of the ServiceNow Platform;
2. install the Supplier Applications on any number of non-production instances associated with the ServiceNow production instance;
3. to receive full product features, updates, support, and online documentation within the subscription Term; and
4. access the Applications through an Embedded Platform Runtime User License to perform read, create, write, update, and delete data required for each end-user. No EPRL is required for an App Subscription for FREELUCY.

“Application” or “App” shall mean the software application(s) offered by Supplier under the names

1. YouDesign,
2. Designer,
3. UPM-X, and/or
4. FREELUCY

These Applications are solely intended and licensed for use on the ServiceNow Platform, provided by ServiceNow. The applications are installed as “plugins” from the ServiceNow store on the ServiceNow Platform and cannot run standalone. ServiceNow is not responsible for (and will have no liability to the customer in connection with) the App or this agreement. 

“Contractor” shall mean any subcontractor(s), supplier(s), licensor(s), contract manufacturer(s) or contractor(s) of any Party and its Affiliates.

“Customer” shall mean any person, company, corporation, or other entity, who obtains or intends to obtain a Subscription and License to use any of the Applications and/or Service(s).

“Documentation” shall mean any and all technical documentation, user manuals, and other materials regarding the Applications located solely online as set out in § 7 below.

“Editor” refers to a named user of the Designer or UPM-X application to create, update, write, and delete content. An EPRL is required for each Editor and includes Reader access.

“Embedded Platform Runtime User License” or “EPRL” refers to the ServiceNow Embedded Platform Runtime User licenses required by each named End User to access the Designer or UPM-X Applications. The EPRL provides the rights through the Applications to use ServiceNow core platform functionalities e.g., reporting, workflow, etc. Each End User requires a single EPRL per Application.

“End User” refers to the EPRL Editors and/or EPRL Readers that will utilize the App on the ServiceNow Platform.  

“Entitlement” means the technical assignment of Customer’s purchased App licenses to its ServiceNow instances. After receiving the Customer Purchase Order, Supplier will inform ServiceNow to entitle the licenses on Customer instances. Supplier has no influence or responsibility for the entitlement process.

“License” refer to App License.

“Purchase Order” or “PO” shall mean a document issued by Customer in an electronic format containing the unique purchase order number, and in which Customer requests Supplier to deliver Applications and/or Services under the terms and conditions of this Agreement or a Statement of Work and such Applications and/or Services are itemized with the corresponding price, ordered quantity, item identification, and time schedule. Any pre-printed general terms and conditions in any such PO shall not apply.

“Reader” refers to a named End User of the Designer or UPM-X application able to read content e.g. form and list views, diagrams, reports, and dashboards.

“ServiceNow” refers to ServiceNow, Inc.

“ServiceNow Platform” shall mean ServiceNow^® hosted software and services.

“Subscription” refers to Customer’s right to have access to the App and related Services identified herein, and in any SOW, upon acceptance of these T&Cs and payment of the Subscription Fees and any other Fees identified in an SOW for the Term of the Subscription and any renewal terms. 

“Statement of Work” or “SOW” is a document negotiated by the parties setting out the terms and conditions regarding services to be provided by Supplier to Customer related to Customer’s App Subscription and App License (Professional Services) and as may be set out in a relevant PO. 

“Supplier” refers to ins-pi GmbH and its Affiliates.

§ 1          OWNERSHIP

The App is protected by copyrights and other intellectual property rights. Customer acknowledges and agrees that all worldwide copyright and other intellectual property rights in the App, and all copies of the App however made, are the exclusive property of Supplier. All rights in and to the App not expressly granted to Customer in this Agreement are reserved by Supplier. There are no implied licenses under this Agreement.

§ 2          SUBSCRIPTION

Upon payment by Customer of the applicable Subscription Fees, the App will be enabled for Customer’s own internal use and use by Customer’s affiliates and service providers to perform Customer’s internal work and support Customer’s process, during the Term (defined below), through a single authorized production instance of the ServiceNow Platform, and any number of non-production instances associated with the production instance (the App License). Each End-user requires one Embedded Platform Runtime User License (“EPRL”) per App which needs to be purchased through the Supplier as part of the App Subscription (not required for FREELUCY). Neither the App Subscription, App License nor the EPRL includes a ServiceNow platform license or subscription, or access to other billable ServiceNow addons, or a license to administrate the ServiceNow Platform. The App License and EPRLs allowing access to your ServiceNow Platform instances of the Licensed App will be entitled by ServiceNow after receipt of the purchase order. Access to the Now™ Platform must be separately purchased from ServiceNow. Customer is not entitled to delivery of a copy of the App apart from its deployment on Customer’s authorized instances of the ServiceNow Platform.

§ 3          RESTRICTIONS ON USE

Customer may not do (or permit others to do) any of the following:

§ 4          APPLICATION SCOPE

For the avoidance of doubt, Customer acknowledges the following:

§ 5          TECHNICAL SUPPORT

The Apps availability is dependent on the ServiceNow Platform availability. Supplier does not provide Technical Support for the ServiceNow Platform. Limited Technical Support for the App is available during the hours, and via the contact information, provided by Supplier at the ServiceNow Store. Customer may notify Supplier if the App is not performing in accordance with the App Documentation. Contact your internal 1^st and 2^nd level support, in case of issues not directly related to the App. ServiceNow will notify Supplier if the problem lies with the App and in that event the Supplier shall comply with the response and resolution times below. The support is restricted to 3^rd level App inquiries only:

 

 

 

 

 

OBTAINING TECHNICAL SUPPORT ("LOGGING A CASE")

To obtain technical support from Supplier, Customer is responsible for complying with the following procedure:

Supplier will record delays. The delays below will not be counted in elapsed time:

SERVICE EXCLUSIONS

App Subscription and Technical Support do not include installation, program development, coding, isolation of coding problems, training, assistance to or consulting or implementation of Customer’s App on the System, customization of Supplier tools or integration of Supplier tools with Customer’s system. Data recovery services are not included as part of the Services, regardless of the cause of data loss. Technical Support is not a substitute for any formal education course and training. Supplier and Customer may plan and implement a training program to train Customer’s Contacts, System administrators and users on the current revision of the App. Decommissioning and disposal of App configuration is not included as part of the Technical Support. Technical Support do not include onsite assistance.

Supplier shall not be obligated to provide Technical Support if Defects are caused by or related to the following:

Supplier shall not be obligated to provide Technical Support, except for the

Supplier shall have no obligation to provide Technical Support if Customer is using any third party software e.g. Chrome, that has been superseded by a current release more than twelve (12) months prior to the then-current date.

§ 6          DOCUMENTATION

The App Documentation is only available online on the Supplier website:  

Supplier has the right to update and remove articles and functionality without notifying Customer.

§ 7          APP LICENSE

Upon acceptance of these T&Cs, Supplier hereby grants to the Customer, a License to use the Application subscribed to within the Term of the App Subscription, such License incorporating the terms of this Agreement and specifically including the right to:

Supplier acknowledges that the App License also allows Customer’s service providers access to the Application as necessary to enable their provision of services to Customer, provided that Customer shall be responsible for ensuring compliance with the Agreement by such service providers.

As a condition of the above App License, with the exception of a subscription to FREELUCY, each of Customer’s End Users require an Embedded Platform Runtime User License, as fully set out in Section § 2 above. The EPRL is required to use the App and can be purchased through the Supplier as part of the App Subscription. If additional production instances of the ServiceNow Platform are required, an additional App Subscription and App License is required.

§ 8          DEPENDENCIES

The App requires a supported version of the ServiceNow platform with at least the following ServiceNow plugins with the minimum versions need to be activated on the platform: Configuration Management (CMDB) V1.1, Content Management V1.0.0, System (apps/system1), System (glidesoft), System Import Sets V1.0.0, Custom Reports 1.0.0, Text Index 1.0.0. The App is using Open-Source software components which have been modified by Supplier. Further details can be provided on request. Access to source code by Customer is not permitted. The App may use further Open-Source components or features embedded in the ServiceNow platform. Supplier provides the App without warranty, and disclaiming liability for damages resulting from using these Open-Source components. Supplier also does not provide any warranty and disclaims any liability for damages resulting from the ServiceNow App or the ServiceNow Platform.

§ 9          FEES AND PAYMENT

Customers rights under Section § 2 (Subscription) are conditioned upon payment by Customer of the applicable subscription fees to Supplier (either directly or through the ServiceNow Store). Subscription fees are payable annually in advance. Fees are payable within 30 days of receipt unless otherwise specified in the agreement by Customer of a valid invoice.  Such invoice may include a buyer code, if one is provided by Customer to Supplier. ALL FEES ARE NON-REFUNDABLE AND NON-CANCELABLE, except as expressly provided in this Agreement and do not include sales and use taxes, value-added taxes, goods and services taxes, excise, business, service, withholding tax, shipping, or customs duties and similar transactional taxes and fees, all of which Customer are responsible for paying above and beyond the subscription fees due to Supplier. Failure to pay fees when due may result in the withdrawal of Customers app from Customers ServiceNow instance. No fees are required for an App Subscription for FREELUCY.

§ 10       WARRANTY, INDEMNITY AND DISCLAIMER OF WARRANTY

Supplier warrants that:

EXCEPT AS SET OUT ABOVE, THE APP IS PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND. SUPPLIER EXCLUDES AND DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING (WITHOUT LIMITATION) ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, NON-INFRINGEMENT, TITLE, RESULTS, EFFORTS OR QUIET ENJOYMENT. THERE IS NO WARRANTY THAT THE APP IS ERROR-FREE OR WILL FUNCTION WITHOUT INTERRUPTION. CUSTOMER ASSUMES THE ENTIRE RISK ARISING OUT OF THE PERFORMANCE OR USE OF THE APP. TO THE EXTENT THAT SUPPLIER MAY NOT DISCLAIM ANY WARRANTY AS A MATTER OF APPLICABLE LAW, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

§ 11       LIMITATION OF LIABILITY

EXCEPT TO THE EXTENT THAT DISCLAIMER OF LIABILITY IS PROHIBITED UNDER APPLICABLE LAW, IN NO EVENT WILL SUPPLIER, SERVICENOW, OR ANY OF THEIR ITS RESPECTIVE AFFILIATES, LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS BE LIABLE TO CUSTOMER FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES ARISING FROM LOSS OF REVENUE, USE, DATA, OR PROFITS, INJURY TO REPUTATION OR GOODWILL, OR THE COST OF SUBSTITUTE GOODS OR SERVICES) WHETHER SUCH DAMAGES ARISE UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR ANY OTHER LEGAL THEORY, AND EVEN IF SUCH DAMAGES ARE FORESEEABLE. IF, UNDER APPLICABLE LAW, LIABILITY FOR DIRECT DAMAGES CANNOT BE EXCLUDED (NOTWITHSTANDING THE FOREGOING), THEN THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS AGREEMENT AND THE APP, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WILL NOT EXCEED THE GREATER OF US$100.00 OR THE AMOUNT OF FEES (IF ANY) THAT CUSTOMER PAID TO SUPPLIER IN ANY PREVIOUS 12 MONTH PERIOD. THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMIT. EITHER PARTY ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, SERVICENOW WILL HAVE NO LIABILITY TO CUSTOMER UNDER THIS AGREEMENT OR IN RELATION TO THE APP. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION WILL APPLY EVEN IF AN EXCLUSIVE REMEDY UNDER THIS AGREEMENT HAS FAILED OF ITS ESSENTIAL PURPOSE.

§ 12       TERM AND TERMINATION

The term of this Agreement (“Term”) will commence upon on the start date of the subscription period as agreed in this Agreement and will remain in effect for a period of one (1) year; thereafter the Term shall automatically terminate unless actively renewed by Customer. Unless Supplier notifies Customer in writing of its intention not to renew at least 60 days prior to expiration of the then-current Term, Supplier shall, not less than 30 days before the expiration of any renewal term, provide Customer with a quotation detailing the pricing for the subsequent renewal term. The Parties shall negotiate the pricing for any renewal term in good faith. Where the Parties were not able to agree on pricing for a renewal term, the pricing during any renewal term shall be aligned with the inflation rate index in Germany https://www.destatis.de but shall not increase by more than 10% above the applicable pricing in the prior term, irrespective of the length of any applicable renewal term. Customer may terminate this Agreement at any time and for any reason by giving written notice to Supplier latest (30) days before the intended date of termination; provided, however, that Customer will not be entitled to a refund of any fees paid hereunder except as set out below. 

Either Party may terminate this Agreement, effective immediately  upon  written notice to the other Party:

1. For Supplier, if Customer fails to pay any portion of the subscription fees when due and fails to cure such non- payment within thirty (30) days after receipt of notice of same; or
2. If either Party otherwise breaches any provision of this Agreement and fails to remedy such breach within 30 days after receipt of notice of the same.

Upon expiration or termination of this Agreement, Customer’s License and right to use or access the App terminate, and the App must be removed from the Customer’s instance of the ServiceNow Platform.  In the event Customer terminates this Agreement for Supplier’s breach, which is not cured as set forth in b. above, Supplier shall refund to Customer a pro-rata share of any fees which Customer paid in advance beginning from the termination date to the end of the Term.

Paragraph § 1, § 6 - § 8 and § 13 - § 23 will survive expiration or termination of this Agreement for any reason.

§ 13       CHOICE OF LAW AND VENUE

This Agreement is governed by the laws of The Federal Republic of Germany under the exclusion of the UN Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) and the German conflict rules, without giving effect to any choice of law principles that would require the laws of a different country or state. In case of disputes arising from or in connection with this Agreement or regarding its validity, the exclusive legal jurisdiction is Cologne, Germany. Any legal action between Customer and Supplier arising out of this Agreement or Customer’s use of the App must be instituted exclusively in the German courts, and Customer consents to jurisdiction and venue in such courts. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (USA) do not apply to this Agreement.

§ 14       COMPLIANCE WITH LAWS

Customer will comply with all applicable export and import control laws and regulations in Customer’s use of the App and, Customer will not export or re-export the App without all required government licenses. Regardless of any disclosure made to Supplier of an ultimate destination of the App and accompanying technical documentation, Customer acknowledges that all such materials are being released or transferred to Customer in the United States and may be subject to U.S. export control laws and regulations including regulations of the U.S. Bureau of Industry and Security. Customer will defend, indemnify, and hold harmless Supplier and its licensors, suppliers and resellers from and against any violation of such laws or regulations by Customer.

§ 15       U.S. GOVERNMENT RIGHTS

If Customer is a branch or agency of the U.S. Government, then Customer acknowledge that the App is a "commercial item" as that term is defined at FAR 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are defined and used in FAR 2.101 and 12.212. Any technical data provided with such App is commercial technical data as that term is used in FAR 12.211 and is the same data customarily provided to the public with such App. Consistent with FAR 12.211 through 12.212 and DFARS 227.7202-1 through 227.7202-4, and DFARS 252.227-7015, all U.S. Government end users acquire the App with only those rights set forth in this Agreement.

§ 16       RELATIONSHIP BETWEEN THE PARTIES

The parties are independent contractors neither party is the agent, partner, employee, fiduciary, or joint venturer of the other party under this Agreement.

§ 17       ASSIGNMENTS

Neither Customer nor Supplier may assign or transfer, by operation of law or otherwise, any of Customer’s or Supplier’s rights under this Agreement (including Customers licenses with respect to the App) to any third-party without the other party’s prior written consent which will not be unreasonably withheld. Any attempted assignment or transfer in violation of the foregoing will be void.

§ 18       LANGUAGE

This Agreement is in the English language and its English-language version will be controlling over any translation, except and to the extent when required by applicable law.

§ 19       REMEDIES

Except as otherwise provided herein, the parties’ rights and remedies under this Agreement are cumulative. Customer acknowledges that the App contains valuable trade secrets and proprietary information of Supplier, that any actual or threatened breach of this Agreement by Customer will constitute immediate, irreparable harm for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

§ 20       WAIVERS

All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

§ 21       SERVERABILITY

If any provision of this Agreement is held unenforceable by a court, such provision may be changed and interpreted by the court to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Without limiting the generality of the foregoing, Customer agree that Sections § 7 and § 8 will remain in effect notwithstanding the unenforceability of any other provision of this Agreement.

§ 22       ENTIRE AGREEMENT

This Agreement, and any Statements of Work issued hereunder, constitutes the final and entire agreement between the parties regarding the subject of this Agreement and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. If there is any discrepancy between the terms of this Agreement and any other agreement entered into by the parties (with the exception of any SOW), then the terms of this Agreement take precedence.  If there is any discrepancy between the terms of this Agreement and any SOW, the terms of the SOW will take precedence. For the avoidance of doubt, the order of precedence shall be first, all terms in an SOW; second, all terms in this agreement; third, the terms in any other agreements between the Parties.  Each SOW is its own agreement, and one does not modify another unless expressly so stated in the later SOW. This Agreement may be amended only by a written document signed by both parties. The terms of any purchase order or similar document submitted by Customer to Supplier will be considered for negotiation purposes and will not be effective to alter the terms of this Agreement or any SOW unless specifically incorporated therein.