Esko General Terms and Conditions for Mox
Last Updated: November 2, 2022
Version 1
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING THE SERVICE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE USING ANY SERVICE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP, OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THESE TERMS, AND YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO DO SO. IF YOU REGISTER FOR A FREE TRIAL OF THE SERVICE THESE TERMS WILL ALSO GOVERN THE FREE TRIAL.
This Agreement between You and Esko describes access to and use of the Mox Internet-based software service, including, without limitation, its features, functions, and user interface, as specified in the Order Form (the “Service”). It consists of the Esko General Terms and Conditions set forth below (the “GTC”), any attachments, addenda, or exhibits referenced herein, and the Order Form. It goes into effect on the date on which You accept the GTC (the “Effective Date”).
1. USE OF THE SERVICE
1.1 Service Provision and Access. Esko will make the Service available to You for the Subscription Term solely for use by You and Your Authorized Users in accordance with the Agreement. You may permit Authorized Users who are not Your employees to access the Service provided that such use is solely for Your benefit, and that you will be responsible for all Authorized User’s compliance with this Agreement.
1.2 Subscriptions. Unless otherwise provided in the Order Form or Documentation (a) Service are purchased as Subscriptions for the Subscription Term stated in the Order Form, (b) additional Subscriptions may be purchased during a Subscription Term at the same pricing as the underlying Subscription, prorated for the remaining portion of the applicable Subscription Term, (c) the number of Subscription purchased cannot be decreased during the applicable Subscription Term, and (d) any added Subscriptions will terminate on the same date as the underlying Subscriptions. You agree that Your purchases are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Esko regarding future functionality or features.
1.3 Free Trial. If You register for a trial, You may access the Service free of charge for thirty (30) days. During the trial period, the Service is provided ‘as is’ with no warranty. Your Data will be deleted at the end of the trial unless You subscribe to the paid version of the Service.
1.4 Use Restrictions. You may not (a) sell, resell, rent, or lease, the Service to a third party; (b) provide access to any Service to any person who is not an Authorized User; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the Service, (d) remove or obscure any proprietary or other notices contained in the Service, (e) use the Service in violation of the Acceptable Use Policy and applicable law, (f) attempt to gain unauthorized access to the Service or its related systems or networks, or (g) access the Service to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes. Esko may suspend Your access to the Service if Esko believes in good faith that Your use of the Service poses an imminent threat to the security, availability or legality of the Service. In such event, Esko will work with You to address the issue and restore Your access to the Service as quickly as possible.
Esko reserves the right to charge You for excessive use of network resources. If Your traffic exceeds 10TB per month, Esko may charge an additional fee of $0.20 USD per GB. If Your traffic exceeds 300TB per month, Esko will contact You and may suspend Your access to the Service if a timely response is not received.
Your purchased tier of Service includes an account-wide storage allocation calculated by the total number of Authorized Users in your Subscription and Your selected tier of Service. If Your total storage quota is exceeded, Esko will charge You for any excess usage at a rate of $100 per TB per month using the payment method on file.
1.5 Your Responsibilities. You (a) may not include Personal Data (as defined in the Data Processing Addendum in Your Data or personal health information as defined under the Health Insurance Portability and Accountability Act (HIPAA), (b) must keep passwords secure and confidential and use industry-standard password management practices. Furthermore, You must use commercially reasonable efforts to prevent unauthorized access to Your account, and notify Esko promptly of any such unauthorized access.
1.6 Third Party Services. You may install or enable third party services for use with the Service, such as online applications, offline software products, or services that utilize Mox APIs in connection with Your use of the Service (“Third Party Service(s)”). Any acquisition by You of a Third Party Service is solely between You and the Third Party Service. Esko does not warrant or support Third Party Services. If You install or enable a Third Party Service for use with the Service, You grants Esko permission to allow the provider of that Third Party Service to access Your Data as required for the interoperation of that Third Party Services with the Service. Esko shall be responsible for any disclosure, modification or deletion of Your Data resulting from access by a Third Party Service.
1.7 Beta Services. From time to time, Esko may invite You to try Beta Services at no charge. You may accept or decline any such trial in its sole discretion. Beta Services will be clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation or by a description of similar import. Beta Services are for evaluation purposes and not for production use, are not considered as the “Service” under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise stated, any Beta Services period will expire upon the earlier of one year from the start date or the date that a version of the Beta Services becomes generally available. Esko may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Esko will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3. WARRANTY AND DISCLAIMER OF WARRANTY
3.1 Service Warranty. Esko warrants that it implements industry-standard anti-virus software for the Service. If Esko is not able to correct any reported non-conformity with this warranty, You may terminate the Order Form, and as Your sole and exclusive remedy, You will be entitled to receive a refund of any pre-paid unused fees for the applicable Service purchased thereunder.
3.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICE IS PROVIDED “AS IS,” AND ESKO MAKES NO IMPLIED OR STATUTORY WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. ESKO DOES NOT WARRANT THAT THE USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
4. INTELLECTUAL PROPERTY AND OWNERSHIP
4.1 Retention of Rights. You agree that Esko or its suppliers retain all right, title, and interest (including all intellectual property rights) in and to the Service, and any derivative works, modifications thereof, or improvements thereto. Except for the expressly limited rights set forth in these General Terms and Conditions, no right, title, or interest in the Service is granted to You.
4.2 Ownership of Your Data. As between us, You or Your licensors retain all right, title, and interest (including any and all intellectual property rights) in and to Your Data and any modifications made thereto in the course of the operation of the Service. You warrant that (i) You have and will maintain sufficient rights in Your Data to grant Esko the rights needed to provision the Service for You and (ii) Your Data and Your Materials will not violate the rights of any third-party rights.
4.3 License to Use Feedback. You grant Esko and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction, or other feedback provided by You or Authorized Users relating to the operation of Esko’s or its Affiliates’ services or products.
4.4 Statistical Information. Esko may compile statistical information related to the performance of the Service and may make such information publicly available, provided that such information does not identify You or Your Data, and there is no means to re-identify You or Your Data. Esko retains all intellectual property rights in such information.
5. MUTUAL INDEMNIFICATION
5.1 Indemnification by Esko. Esko will defend You against any claim by a third party alleging that the Service infringes any intellectual property right of such third party and will indemnify and hold You harmless from any damages and costs finally awarded against You or agreed in settlement by Esko (including reasonable attorneys’ fees) resulting from such claim. If Your use of the Service results (or in Esko’s opinion is likely to result) in an infringement claim, Esko may either: (a) substitute functionally similar products or services; (b) procure for You the right to continue using the Service; or if (a) and (b) are not commercially reasonable, (c) terminate this Agreement and refund associated pre-paid unused fees. The foregoing indemnification obligation of Esko will not apply if the claim arises from (i) modification of the Service by any party other than Esko or based on Your specifications or requirements, (ii) the combination of the Service with products or processes not provided by Esko, (iii) any use of the Service that is not compliant with this Agreement, or (iv) any action arising as a result of Your Data, or any deliverables or components not provided by Esko. This Section 5.1 sets forth Your sole remedy with respect to any claim of intellectual property infringement.
5.2 Indemnification by You. You will defend Esko against any claim by a third party arising from or relating to any of Your Data and will indemnify and hold harmless Esko from and against any damages and costs awarded against Esko or agreed in settlement by You (including reasonable attorneys’ fees) resulting from such claim.
5.3 Indemnification Procedures. In the event of a potential indemnity obligation under this Section 5, the indemnified party will: (i) promptly notify the indemnifying party in writing of the claim, (ii) allow the indemnifying party the right to control the investigation, defense, and settlement (if applicable) of such claim at the indemnifying party’s sole cost and expense, and (iii) upon request of the indemnifying party, provide all necessary cooperation at the indemnifying party’s expense. The indemnifying party may not settle any claim that would bind the indemnified party to any obligation (other than payment covered by the indemnifying party or ceasing to use infringing materials) or require any admission of fault by the indemnified party without the indemnified party’s prior written consent, such consent not to be unreasonably withheld.
6. TERM AND TERMINATION
6.1 Term of Agreement. This Agreement commences on the Effective Date and continues for the period indicated in the Order Form unless terminated earlier in accordance with Section 6.2 below. Upon the expiration of the Subscriptions described in the Order Form, Esko will issue You a confirmation of the next Subscription Term, which shall be governed by the GTC unless You cancel the Subscription within the online portal available at https://eskostore.onfastspring.com/account prior to the renewal date.
6.2 Termination. Either party may terminate this Agreement for cause upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or if the other party becomes the subject of a petition in bankruptcy or any other similar proceeding.
6.3 Suspension of Services. Esko may suspend Your access to the Service in the case of non or for violation of the Acceptable Use Policy. In case of suspension, Esko will attempt to give You at least twelve (12) hours’ prior notice unless Esko reasonably determines that a shorter notice period is necessary to protect the interests of Esko, of You, or of any third party.
6.4 Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with 6.2, Esko shall refund to You any pre-paid, unused fees. If this Agreement is terminated by Esko in accordance with Section 6.2, You will pay any unpaid fees due covering the remainder of the term of the Order Form. In no event shall termination relieve You of Your obligation to pay any fees payable to Esko for the period prior to the effective date of termination.
6.5 Data Portability and Deletion. For thirty (30) days following the effective date of termination or expiration of this Agreement, Esko shall make Your Data available to You for export or download as provided in the Documentation. After such thirty (30) day period, Esko shall have no further obligation to maintain Your Data and shall thereafter delete or destroy all copies of Your Data as provided, unless legally prohibited.
6.6 Survival. The following sections will survive any expiration or termination of this Agreement: 1.4 (Use Restrictions), 2 (Fees and Payment), 3.2 (Warranty Disclaimer), 4 (Intellectual Property and Ownership), 5 (Mutual Indemnification), 6 (Term and Termination), 7 (Confidentiality and Protection of Your Data), 8 (Limitation of Liability), 9 (Miscellaneous), and 10 (Definitions).
7. CONFIDENTIALITY AND PROTECTION OF YOUR DATA
7.1 Definition of Confidential Information. Your Confidential Information includes Your Data. Confidential Information of Esko includes the Service and the terms and conditions of this Agreement (including pricing), however, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Esko services.
7.2 Confidentiality Obligations. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) to not use any Disclosing Party Confidential Information for any purpose outside the scope of this Agreement and except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who have a need to know and who are under similar confidentiality obligations as those herein. If the Receiving Party is required by law or court order to disclose Confidential Information, then Receiving party shall, to the extent legally permitted, provide the Disclosing Party with advance written notification and cooperate in any effort to obtain confidential treatment of the Confidential Information.
The Receiving Party acknowledges that disclosure of Confidential Information may cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. Upon termination of this Agreement, both parties shall either return or destroy any Confidential Information in its possession.
7.3 Your Data. To the extent that any of Your Data comprises personal data (as defined in Directive 95/46/EC of the European Parliament and of the Council or any successor directive or regulation), as between You and Esko, You are the data controller, and Esko is the data processor and the terms of the Esko Data Processing Addendum shall apply. You are solely responsible for the accuracy, content, and legality of all Your Data and warrant that You have and will maintain sufficient rights in Your Data to grant the rights to Esko under this Agreement and that Your Data will not violate the rights of any third party. You grant Esko authorization to view, store, copy, and delete or otherwise process Your Data as part of Esko’s standard performance of the Service to prevent or address service or technical problems with the Services, or as may be required by law and You consent and agree to the processing of Your Data by Esko for such purpose at or from geographical locations within or outside of the European Economic Area (including but not limited to the United States of America).
7.4 Security Measures for the Protection of Your Data. Esko will maintain appropriate administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of Your Data, as described in the Security Policy.
7.5 Publicity. You agree that Esko may reference you as a customer and use Your logo, subject to any branding guidelines that You apprise Esko of, in its marketing collateral in relation to the Service and on the Mox site.
8. LIMITATION OF LIABILITY
8.1 EXCLUSION OF CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY HERETO HAVE ANY LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, LOSS OF DATA, OR INDIRECT, SPECIAL, COVER, BUSINESS INTERRUPTION, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.
8.2 LIABILITY LIMITATIONS. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY HEREUNDER EXCEED THE TOTAL FEES PAID OR PAYABLE BY YOU TO ESKO UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM.
8.3 GENERAL LIABILITY PROVISIONS. THE PARTIES AGREE THAT THIS SECTION 8 WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER, IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
DEFINITIONS
“Acceptable Use Policy” means the policy made accessible by AWS via available via https://aws.amazon.com/legal/.
“Affiliate” means any company controlled by or under common control with the subject entity, directly or indirectly, with an ownership interest of at least 50%.
“Authorized Users” means individuals authorized by You to use the Service, which may include, Your officers, employees, or consultants performing services for You or on Your behalf.
“Beta Services” means Esko services or functionality that may be made available to You to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.
“Confidential Information” means all information disclosed by a party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
“Documentation” means Esko’s user guides, documentation, and help and training materials, as updated from time to time and provided to You.
“Esko” means the Esko-Graphics entity that executed Your Order Form.
“Data Processing Addendum” means the Esko addendum published at Esko’s website https://www.esko.com/en/legal/termsandconditions which is considered incorporated herein by reference
“Order Form” means the Esko document that details the Service ordered.
“Security Policy” means, the Esko security policy published at Esko’s website www.esko.com/termsandconditions which is considered incorporated herein by reference.
“Subscription” means the term-based access to the Service purchased in the Order Form.
“Subscription Term” means the duration of the Subscription.
“You” means the customer identified in the Order Form.
“Your Data” means any electronic data and information submitted by You to the Service.
Copyright 2022 Esko-Graphics Inc. Mox is a registered trademark of Esko-Graphics BV. All rights reserved.