Terms & Conditions
By indicating your acceptance of these Terms & Conditions, accessing or using any RADIAN Products or Services, Customer agrees to be bound by all Terms & Conditions of the Agreement.
If you do not agree to the Agreement, please do not use the RADIAN Products or Services. For clarity, each party expressly agrees that the Agreement is legally binding upon it. Please read it carefully.
These Terms & Conditions are entered into by and between RADIAN, svetovanje d.o.o., with office at Podsmreka 3d, Dobrova, Slovenia (“RADIAN”) and the entity or person placing an order for or accessing the RADIAN Offering (“Customer” or “you”). If you are accessing or using RADIAN Offering on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company. All defined terms used herein shall have the meanings accorded to such terms herein.
Agreement; Effective Date: These Terms and Conditions together with all exhibits and addenda hereto and documents referenced and linked to herein and all Order Forms and Statements of Work entered into by the Parties hereunder (collectively, the “Agreement”) permit Customer to order RADIAN Products and Services (collectively, sometimes referred to herein as the “RADIAN Offering”) from RADIAN and its authorized resellers, sets forth the terms and conditions between the Parties with respect thereto, and governs Customer’s access and use of the RADIAN Offering. In the event of any conflict between the provisions in these Terms & Conditions and any Order Form or Statement of Work, the terms of such Order Form or Statement of Work, as applicable, shall prevail. In the event of any conflict between the provisions in these Terms & Conditions and any exhibits and addenda hereto or any documents referenced and linked to herein, the terms of such exhibits and addenda hereto or any documents referenced and linked to herein, as applicable, shall prevail. No terms or conditions stated in a Customer purchase order or in any other Customer provided business forms or order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. The “Effective Date” of the Agreement is the date which is the earlier of (a) Customer’s initial access to any RADIAN Product or Services through any online provisioning, registration or order process with RADIAN or (b) the effective date of the first Order Form that references these Terms & Conditions and is entered into between Customer and RADIAN.
Modifications to Terms & Conditions: From time to time, RADIAN may modify these Terms & Conditions; provided, that any modifications which are adverse to Customer will not become effective until renewal of Customer’s then-current Subscription Term or entry into a new Order Form. RADIAN will use reasonable efforts to notify Customer of the changes through communications via email, posting through the MSA Manufacturing Stream Automation Digital platform or other means.
Customer may be required to click to accept or otherwise agree to the modified Terms & Conditions before renewing a Subscription Term or entering into a new Order Form, and, in any event, continued use of the RADIAN Offering after the updated version of these Terms & Conditions go into effect will constitute Customer’s acceptance of such updated version.
1. RADIAN Offering.
1.1. Subject to the terms and conditions of the Agreement, including without limitation payment of all fees under each Order Form and Statement of Work, Customer will order, and RADIAN will deliver, the RADIAN Products and Services ordered by a Customer in accordance with and pursuant to each Order Form and Statement of Work. Customer may access and use the RADIAN Products and Services solely for Customer’s own internal business purposes and not for the benefit of any third party. The RADIAN Platform and the RADIAN Software is licensed to Customer on a subscription basis for the limited Subscription Term set forth in the applicable Order Form. Customer acknowledges and agrees that Customer’s and its Users’ access and use of the RADIAN Products and Services shall at all times comply with the Documentation and any use restrictions or limitations set forth herein or in the applicable Order Form.
1.2. Subject to Customer’s compliance with the terms and conditions in this Agreement, the Documentation, and each Order Form RADIAN grants Customer the following rights:
1.2.1. The RADIAN, svetovanje d.o.o. company is the exclusive and sole owner and developer of the ™MSA Manufacturing Stream Automation digital platform (“MSA” or “MSA platform”). RADIAN grants to Customer a worldwide, revocable, nonexclusive, non-transferable, non-sublicensable right during the Subscription Term to authorize Admin Users to access and use the MSA platform solely for purposes in accordance with the provided functionality of the MSA platform for the internal needs of the client's company. RADIAN is responsible for providing the infrastructure required to provide the MSA platform and RADIAN may engage third party service providers to host the MSA platform and provide certain functionality of the MSA Platform on RADIAN’s behalf. RADIAN will be responsible for the compliance of such third-party service providers with RADIAN’s obligations to provide the MSA platform pursuant to this Agreement. If RADIAN believes that Customer has exceeded its rights under this Agreement or an Order Form through increased usage that is not otherwise in accordance with the terms of the applicable Order Form, and Customer does not contest such allegation or it is ultimately determined that such belief was correct, RADIAN shall have the right to invoice Customer for such increased usage using the rates set forth in the applicable Order Form, including any discounts contained therein.
1.2.2. RADIAN grants to Customer a non-exclusive, nontransferable, worldwide, revocable, nonsublicensable license during the Subscription Term to download, install, execute, and use MSA platform on Supported Devices.
1.2.3. RADIAN grants Customer a non-exclusive, non-transferable, worldwide, revocable, nonsublicensable license during the Subscription Term to use any MSA APIs made available as part of the MSA platform for the sole purposes of accessing and using the MSA platform for Customer’s own internal business purposes. RADIAN reserves the right to place limits on access to such MSA APIs (e.g., limits on numbers of calls or requests). Further, RADIAN may monitor Customer’s usage of such MSA APIs and limit the number of calls or requests Customer may make if RADIAN believes that Customer’s usage is in breach of this Agreement or may affect the availability, integrity or security of the MSA platform or otherwise harm RADIAN, its other customers or the MSA platform (or otherwise impose liability on RADIAN).
1.3. The Demo Version of the MSA platform can only be used by a potential Customer to get acquainted with the functions of the MSA platform. It is forbidden to use the demo version as a working one. Notwithstanding anything to the contrary in the Agreement, the warranties, indemnities and other obligations of MSA hereunder shall not apply to Demo Version, all of which are provided “as is” and “as available”.
1.4. Customer will not (and will not permit any third party to): (a) rent, lease, provide access to, sublicense, transfer or otherwise make available the RADIAN Offering to a third party; (b) use the RADIAN Offering to provide, or incorporate the RADIAN Offering into, any product or service provided to a third party; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the RADIAN Offering, except to the extent expressly permitted by applicable law (and then only upon advance notice to RADIAN); (d) adapt, alter, modify, improve, translate or create derivative works of the RADIAN Offering; (e) copy or modify the RADIAN Offering or any Documentation, or create any derivative work based on any of the foregoing; (f) create Internet "links" to or from the RADIAN Offering or "frame" or "mirror" any content forming part of the RADIAN Offering, other than on Customer's own intranets or otherwise for its own internal business purposes; (g) remove or obscure any copyright, proprietary or other notices contained in the RADIAN Offering; or (h) publicly disseminate information regarding the performance of the RADIAN Offering.
1.5. The rights set forth in this Section 1 may be exercised by Customer’s Contractors and Affiliates for the sole benefit of Customer; provided, that Customer requires such third parties to execute a written agreement with Customer that is at least as protective of the RADIAN Offering and RADIAN’s Confidential Information as this Agreement and which does not grant any greater rights than those granted to Customer in Section 1 and includes all restrictions set forth in this Agreement and the applicable Order Form and Customer shall be responsible for any breach of the Agreement by any such third party.
1.6. RADIAN reserves the right to modify the RADIAN Offering from time to time, including without limitation implementing Updates, and RADIAN will update the applicable Documentation accordingly. If any such modification materially and adversely reduces the functionality of a RADIAN Product or Service, Customer sole and exclusive remedy shall be for Customer to terminate its subscription for the affected RADIAN Product or Service. RADIAN may condition the implementation of new features, functionality, or other modifications on Customer’s payment of additional fees provided that RADIAN generally charges other customers for such modifications. Further, the support and service level availability terms described in the MSA platform support may be updated from time to time upon reasonable notice to Customer to reflect process improvements or changing practices; provided that any modifications that materially decrease RADIAN obligations as compared to those reflected in such terms as of the Effective Date shall not take effect until renewal of Customer’s Subscription Term.
1.7. The MSA Platform may support connections with certain Third-Party Platforms. In order for the MSA platform to communicate with such Third-Party Platforms, Customer may be required to input credentials to authorize the MSA platform to connect to Customer’s account in order to transmit and receive information and data from such Third-Party Platforms as directed or enabled by Customer. Customer is solely responsible for complying with any relevant terms and conditions of the Third-Party Platforms and maintaining appropriate accounts in good standing with the providers of the Third-Party Platforms. Customer acknowledges and agrees that RADIAN has no responsibility or liability for any Third-Party Platform or any Customer Data exported to a Third-Party Platform or for verifying any Customer Data that Customer imports from a Third-Party Platform.
2. MSA platform support.
Subject to RADIAN’s receipt of Customer’s payment of all applicable fees and Customer’s installation of all Updates, RADIAN shall provide Customer with support services pursuant to the MSA platform support ordered by Customer on the associated Order Form.
3. Professional Services.
RADIAN will provide the professional consulting services (“Professional Services”) purchased in the applicable Order Form. The scope of Professional Services will be as set forth in a Statement of Work referencing this Agreement and executed by both parties describing the work to be performed, fees and any applicable milestones, dependencies and other technical specifications or related information (“SOW”). Unless Professional Services are provided on a fixed-fee basis, Customer will pay RADIAN at the per-hour rates set forth in the Order Form or SOW (or, if not specified, at RADIAN then-standard rates) for any excess services. Customer will reimburse RADIAN for reasonable travel and lodging expenses as incurred. Customer shall have the right to use any Deliverables delivered as part of the Professional Services in support of Customer’s authorized use of the RADIAN Offering, subject to the terms and conditions of the Agreement including without limitation the licenses, rights and restrictions set forth in Section 1 above and in the Order Form and applicable SOW. The parties acknowledge that RADIAN does not perform custom development work as part of the Professional Services and that the Deliverables provided by RADIAN in the performance of the Professional Services may include, among other things, configuration and implementation of the RADIAN Offering, modifications to the RADIAN Offering, training materials and Documentation. Accordingly, RADIAN will retain all right, title and interest in and to any such Deliverables, including without limitation all Intellectual Property Rights therein and thereto. For purposes hereof, “Deliverables” means any and all technology, work product, software code and other deliverables delivered pursuant to an SOW, including without limitation any and all derivatives, enhancements and modifications thereof.
4. Customer Responsibilities for the MSA platform.
4.1. Customer will safeguard, and ensure that all Users safeguard the Access Credentials. Customer will be responsible for all acts and omissions of Users. User IDs are granted to individual, named persons and may not be shared. Customer agrees to: (1) keep its Access Credentials secure and confidential and not to allow any of Customer’s Admin Users to provide their Access Credentials to anyone else; and (2) not permit others to use Customer’s Access Credentials. Customer will notify RADIAN immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security with respect to the MSA platform or Customer’s Access Credentials. Customer shall be solely responsible for ensuring that its Users comply with the terms of this Agreement and the Acceptable Use Policy. Customer will promptly notify RADIAN of any suspected or alleged violation of the terms and conditions of this Agreement or the Acceptable Use Policy and will cooperate with RADIAN with respect to: (i) investigation by RADIAN of any suspected or alleged violation of this Agreement or the Acceptable Use Policy, and (ii) enforcement of this Agreement and the Acceptable Use Policy. RADIAN reserves the right, in its sole discretion and without liability to Customer or its Users, to take any action RADIAN deems necessary or reasonable to ensure the security of the MSA platform and Customer’s Access Credentials and account, including terminating Customer’s access or the access of any of Customer’s Users, changing passwords, or requesting additional information to authorize activities related to Customer’s account. If any User who has access to a user ID is no longer an employee (or Contractor) of Customer, then Customer will immediately delete such user ID and otherwise terminate such User’s access to the MSA platform.
4.2. Customer acknowledges and agrees that Customer’s and its Users’ access and use of the MSA platform is dependent upon access to telecommunications and Internet services. Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the MSA platform, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing. RADIAN will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from any such telecommunications or Internet services or any such hardware or software. RADIAN may provide notice to Customer from time to time of the version(s) of those products required in order to for Customer and its Users to use the MSA platform (e.g., supported browser versions). Customer acknowledges that if Customer desires to protect Customer’s transmission of data and/or files to RADIAN, it is Customer’s responsibility to use a secure encrypted connection to communicate with and/or utilize the MSA platform.
5.1. In consideration for the rights granted hereunder, Customer will pay to RADIAN the fees set forth in each Order Form in accordance with the payment schedule set forth in such Order Form. Unless otherwise specified in any Order Form, all invoices issued by RADIAN will be due and payable within fifteen (15) days of the date of the invoice. All fees are nonrefundable, except as expressly otherwise set forth in this Agreement, and will be paid in euros. The fees in the Order Form are valid for the initial twelve (12) month period of each Subscription Term and thereafter may be subject to an automatic adjustment increase of up to ten percent (10%) per year. Customer is responsible for paying all Taxes, and all Taxes are excluded from any fees set forth in the applicable Order Form. If Customer is required by applicable law to withhold any Taxes from Customer’s payment, the fees payable by Customer will be increased as necessary so that after making any required withholdings, RADIAN receives and retains (free from any liability for payment of Taxes) an amount equal to the amount it would have received had no such withholdings been made. Any late payments will be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less. In the event of any dispute of an invoice, Customer shall notify RADIAN in writing within fifteen (15) days of receipt of the invoice of the disputed amount and the reason for the dispute, and the parties agree to negotiate promptly and in good faith a reasonable settlement of the disputed amount. Amounts not disputed within such fifteen (15) day period will be deemed valid and may not later be disputed.
5.2. Payment is accepted only to the current account of the RADIAN company, according to the invoice.
6. Customer Data.
6.1. As between the parties, Customer will retain all right, title and interest (including any and all Intellectual Property Rights) in and to the Customer Data submitted to the MSA platform. Subject to the terms of this Agreement, Customer hereby grants to RADIAN a non-exclusive, worldwide, royalty-free, fully paid up, irrevocable (except on termination of this Agreement) license with right of sublicense to use, execute, host, copy, store, process, transmit, distribute, modify, create derivative works of and display the Customer Data solely to the extent necessary to provide the RADIAN Offering to Customer and its Users and to allow RADIAN’s third party contractors and services providers to exercise the licenses granted to RADIAN in this Section to perform services for or on behalf of RADIAN the extent necessary to provide the RADIAN Offering to Customer and its Users.
6.2. Customer is solely responsible for the accuracy, content and legality of all Customer Data submitted to the MSA platform. Customer represents and warrants to RADIAN that Customer has all necessary rights, consents and permissions to collect, share and use all Customer Data as contemplated in this Agreement (including granting RADIAN the rights in Section 7.1 (Rights in Customer Data)) and that no Customer Data will violate or infringe (i) any third party Intellectual Property Rights or any publicity, privacy or other rights, (ii) any Laws, (iii) any terms of service, privacy policies or other agreements governing the Customer’s accounts with any Third-Party Platforms or (iv) the Acceptable Use Policy. Customer will be fully responsible for any Customer Data submitted to the Services by any User as if it was submitted by Customer.
6.3. Notwithstanding anything to the contrary herein, Customer agrees that RADIAN may use Aggregated Anonymous Data to analyze, improve, support and operate the RADIAN Offering and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other RADIAN customers. For clarity, Aggregated Anonymous Data will not include Customer Data that has not been anonymized and aggregated with other RADIAN customer data and does not give RADIAN the right to identify Customer as the source of any Aggregated Anonymous Data.
6.4. RADIAN does not provide an archiving or data backup service for RADIAN Products or Services. RADIAN agrees only that it will not intentionally delete any Customer Data from the MSA platform prior to termination of Customer’s applicable Subscription Term. RADIAN expressly disclaims all other obligations and liability with respect to storage and data backup.
6.5. RADIAN agrees to maintain appropriate technical and organizational measures with respect to the MSA platform which are designed to prevent unauthorized access, use, alteration, or disclosure of Customer Data; however, RADIAN will have no responsibility for errors in transmission, unauthorized third-party access, loss, corruption, destruction, alteration, or unauthorized disclosure of or access to Customer Data which outside of RADIAN’s reasonable control. RADIAN’s privacy statement set forth at https://msaplatform.eu/privacy-and-cookie-policy/ as the same may be updated from time to time as provided therein, shall apply to all disclosures of personal information ander personal data by Users to RADIAN. To the extent applicable to Customer’s use of the MSA platform, the parties will separately execute RADIAN’s standard form of Data Processing Addendum.
7. Term; Termination; Suspension.
7.1. This Agreement is effective as of the Effective Date and expires on the date of expiration or termination of all Subscription Terms. Unless otherwise specified on the applicable Order Form, each Subscription Term will automatically renew for additional twelve-month periods unless either party gives the other written notice of termination at least thirty (30) days prior to expiration of the then-current Subscription Term.
7.2. Either party may terminate this Agreement (including all related Order Forms and Statements of Work) if the other party (a) fails to cure any material breach of this Agreement (including a failure to pay undisputed fees) within thirty (30) days after receipt of written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
7.3. Upon any expiration or termination of this Agreement, Customer will immediately cease any and all use of and access to all RADIAN Offering (including any and all related RADIAN Property) and will irretrievably delete (or, at RADIAN request, return) any and all RADIAN Software, Documentation, Access Credentials, RADIAN Content, RADIAN APIs, and RADIAN Confidential Information in its custody or control and all copies, summaries and extracts thereof. Provided this Agreement was not terminated for Customer’s breach, Customer may retain and use internally copies of all reports exported from the MSA platform prior to termination. Customer acknowledges that following termination it will have no further access to any Customer Data processed by RADIAN through the MSA platform, and that RADIAN may delete any such data as may have been stored by RADIAN at any time. Except where an exclusive remedy is specified, the exercise of either party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to RADIAN prior to the effective date of termination and if RADIAN terminates this Agreement pursuant to Section 7.2, all amounts payable by Customer under this Agreement and all Order Forms will become immediately due and payable. RADIAN shall have no liability to Customer or any third party for any termination or expiration of this Agreement.
7.4. If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), RADIAN reserves the right to suspend Customer’s access to the MSA platform (and any related Services) without liability to Customer until such amounts are paid in full. RADIAN also reserves the right to suspend Customer’s access to the MSA platform (and any related Services) without liability to Customer if Customer’s use of the Services is in violation of the license or other rights granted under Section 1 or a threat to the technical security or technical integrity of the MSA platform exists as determined by RADIAN in its sole and absolute discretion.
7.5. The following Sections will survive any expiration or termination of this Agreement: 5 (Payment), 6.1 (Customer Rights in Customer Data), 6.3 (Aggregated Anonymous Data), 7.3 (Effect of Termination), 7.5 (Survival), 9.2 (Warranty Disclaimer), 10 (Indemnification), 11 (Limitation of Liability), 12 (Confidential Information), and 15 (General Terms).
Customer hereby grants RADIAN the right to list Customer’s name and logo on RADIAN’s customer lists, including on RADIAN’s web sites and in RADIAN promotional materials, and agrees that RADIAN may disclose Customer as a customer of RADIAN.
9. Limited Warranty.
9.1. RADIAN warrants, for Customer’s benefit only, that the MSA platform will include the functionality set forth in the applicable Documentation. RADIAN’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty will be, at no charge to Customer, for RADIAN to use commercially reasonable efforts to correct the reported non-conformity, or if RADIAN determines such remedy to be impracticable, either party may terminate the applicable Subscription Term and Customer will receive as its sole remedy a refund of any fees Customer has pre-paid for the terminated portion of the applicable Subscription Term. The limited warranty set forth in this Section 9.1 will not apply: (i) unless Customer makes a claim within thirty (30) days of the date on which Customer first noticed the non-conformity, (ii) if the nonconformity was caused by misuse or unauthorized modifications of the RADIAN Offering, Customer’s or its Users’ acts or omissions, or any Customer Data or interoperability of Customer infrastructure, Customer Data or Third Party Platforms, or non-RADIAN hardware, software, materials or services, (iii) Customer’s failure to install an Update, or (iv) to Demo Version.
9.2. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 9.1, THE RADIAN OFFERING IS PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER RADIAN NOR ITS SUPPLIERS MAKE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. RADIAN DOES NOT WARRANT THAT CUSTOMER’S USE OF THE RADIAN OFFERING WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, NOR DOES RADIAN WARRANT THAT THE RESULTS FROM USE OF THE RADIAN OFFERING WILL BE ACCURATE OR RELIABLE. RADIAN DOES NOT WARRANT THAT RADIAN WILL REVIEW THE CUSTOMER DATA SUBMITTED TO THE MSA PLATFORM FOR ACCURACY OR THAT IT WILL PRESERVE OR MAINTAIN THE CUSTOMER DATA WITHOUT LOSS OR CORRUPTION. RADIAN SHALL NOT BE LIABLE FOR THE RESULTS OF ANY COMMUNICATIONS SENT OR ANY COMMUNICATIONS THAT WERE FAILED TO BE SENT USING THE RADIAN OFFERING. RADIAN SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, THIRD-PARTY PLATFORMS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF RADIAN. RADIAN EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT CUSTOMER’S USE OF THE RADIAN OFFERING WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT CUSTOMER’S AND ITS USER’S USE OF AND ACCESS TO THE RADIAN OFFERING IS IN ACCORDANCE WITH APPLICABLE LAW. RADIAN FURTHER MAKES NO WARRANTY IN CONNECTION WITH UPLOAD OR DOWNLOAD OF “SENSITIVE DATA TYPES”, DEFINED AS DATA PERTAINING TO (A) THE MANUFACTURE, STORAGE, USE, TRANSPORT, OR DESTRUCTION OF NUCLEAR POWER; (B) ANY CONTROL OF SYSTEMS, PROGRAMS, FACILITIES, EQUIPMENT, OR SOFTWARE USED IN SUCH A MANNER AS TO RESULT IN LIFE OR DEATH; (C) THE DESIGN, MANUFACTURE, ACCESS OR USE OF ANY NAVIGATIONAL GUIDANCE SYSTEM; (D) THE DESIGN MANUFACTURE OR USE OF ANY MEDICAL SOFTWARE OR EQUIPMENT USED FOR LIFE SUPPORT; (E) THE OPERATIONS OF ANY CRITICAL FACILITIES; OR (F) ANY MILITARY OR GOVERNMENTAL SECRET OR SENSITIVE INFORMATION. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RADIAN’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, TERM, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED IN RESPECT OF THE SERVICES TO SUPPLYING THE RADIAN PRODUCT OR SERVICE AGAIN.
No RADIAN reseller, agent, or employee is authorized to make any modification, extension, or addition to this warranty. If any term is held to be illegal or unenforceable, the legality or enforceability of the remaining terms shall not be affected or impaired.
10.1. By RADIAN.
10.1.1. If Customer’s use of the MSA platform is (or in RADIAN’s opinion is likely to be) enjoined, if required by settlement or if RADIAN determines such actions are reasonably necessary to avoid material liability, RADIAN may, in its sole discretion require Customer to cease all use of the MSA platform and either: (a) substitute substantially functionally similar software or services; (b) procure for Customer the right to continue using the affected MSA platform, as applicable; or if (a) and (b) are not commercially feasible within a commercially reasonable period of time, (c) terminate this Agreement.
10.1.2. The obligations of RADIAN under this Section 10 will not apply: (1) if the MSA platform is modified by any party other than RADIAN or its authorized contractors, but solely to the extent the alleged infringement is caused by such modification; (2) if the MSA platform is combined with software, hardware, equipment, devices, data or other materials not developed by RADIAN, but solely to the extent the alleged infringement is caused by such combination; (3) to any use of the MSA platform in violation of this Agreement or not in accordance with the Documentation; (4) to any action arising as a result of Customer Data, Customer Applications, Customer Device Drivers, Demo Version, Third Party Platforms, or any third-party deliverables or components contained within the MSA platform; (5) to the extent the alleged infringement is not caused by the particular technology or implementation of MSA platform but instead by features common to any similar product or service; (6) an allegation that does not state with specificity that the MSA platform is the basis of the claim; (7) if Customer settles or makes any admissions with respect to a claim without RADIAN’s prior written consent; or (8) an allegation made against Customer prior to Customer entering into this Agreement or any allegation based upon any action by Customer prior to entering into this Agreement.
10.2. By Customer.
Customer shall defend, indemnify and hold RADIAN and its Affiliates and their respective employees, officers, directors and agents harmless from and against any losses, damages, costs, expenses, settlements, fines, penalties and any and all other liabilities (including reasonable attorneys’ fees) arising out of or in connection with third party claims, suits, proceedings, demands, or actions arising out of or related to (i) Customer’s or any User’s use of the RADIAN Offering not in accordance with the terms of this Agreement or the Documentation or (ii) the Customer Data, Customer Applications, Customer Device Drivers, Third Party Platforms or any other non-RADIAN software, hardware, equipment or materials used by Customer with the RADIAN Offering, including without limitation any claim that any of the foregoing, in whole or in part, infringe, violate or misappropriate the Intellectual Property Rights of, or has otherwise harmed, a third party.
10.3. The foregoing obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, provided, that any failure to promptly notify the indemnifying party shall not relive the indemnifying party of its obligations except to the extent it was unduly prejudiced; (b) giving the indemnifying party sole control of the defense thereof and any related settlement negotiations, provided that any settlement shall fully release the indemnified party from liability and shall not impose any obligations or restrictions on the indemnified party without the indemnified party’s prior written consent; and (c) cooperating and, at the indemnifying party’s written request and expense, assisting in such defense. The indemnifying party will not reimburse the indemnified party for any expenses incurred by the indemnified party without the prior written approval of the indemnifying party. The indemnified party will have the right to participate in the defense and settlement of a claim at the indemnified party’s expense.
11. Limitation of Liability.
11.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR AMOUNTS PAYABLE BY CUSTOMER TO RADIAN, A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, ANY BREACH BY CUSTOMER OF ANY LICENSES GRANTED HEREUNDER OR BREACH OF SECTIONS 1, 4, 6.2 OR 15.10, OR VIOLATION OR MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF DAMAGE TO, OR CORRUPTION OF, DATA, FAILURE OF SECURITY MECHANISMS, LOSS OF USE, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.
11.2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR AMOUNTS PAYABLE BY CUSTOMER TO RADIAN, A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, ANY BREACH BY CUSTOMER OF ANY LICENSES GRANTED HEREUNDER OR BREACH OF SECTIONS 1, 4, 6.2 OR 15.10, OR VIOLATION OR MISAPPROPRIATION BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, VIN NO EVENT SHALL EITHER PARTY'S AGGREGATE TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO RADIAN (OR ITS AUTHORIZED RESELLER) UNDER THE APPLICABLE STATEMENT OF WORK OR THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRIOR TO THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
11.3. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE LIMITATIONS HEREIN MAY NOT APPLY. Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other party or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement. The parties agree that the disclaimers and limitations specified in this Agreement apply regardless of the form of action, whether in contact, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
11.4. To the maximum extent permitted by applicable law and except for actions by RADIAN against Customer for non-payment of, for Customer’s breach of the licenses granted herein or Sections 1, 4, 6.2 or 15.10, or Customer’s misappropriation or violation of RADIAN’s Intellectual Property Rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than one (1) year after the date the cause of action accrued.
11.5 Each party acknowledges that the fees payable by Customer to RADIAN reflect the allocation of risk between the parties and that the other party would not enter into this Agreement without the limitations on its liability set forth in this Section 11.
12. Confidential Information.
12.1. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to or learn from the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including without limitation, technical, marketing, financial, and other confidential or proprietary information whether disclosed orally, in writing or visually, that is either marked or designated as confidential or is identified in writing as confidential at the time of disclosure or which the Receiving Party knew or should have known, due to the nature of the information and/or the circumstances under which disclosure was made, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”). For the avoidance of doubt, the RADIAN Offering, these Terms and Conditions and any pricing provided in an Order Form, Aggregated Anonymous Data and any performance or benchmarking information with respect to the RADIAN Offering constitute Confidential Information of RADIAN.
12.2. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees agents, contractors and other representatives of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care; and (b) promptly advise the Disclosing Party upon becoming aware of any loss, disclosure, or duplication of the Confidential Information or of any breach of this Agreement, including, without limitation, the misappropriation of the Confidential Information. Both parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Section 12 (Confidential Information) and that the use of the Confidential Information for any purpose other than that stated herein may, among other things, enable the Receiving Party or other third parties receiving such Confidential Information to compete unfairly with the Disclosing Party. Therefore, in the event of a breach or threatened breach, the disclosing party shall be entitled, in addition to all other rights and remedies available at law or in equity, to seek (i) an injunction restraining such breach, without being required to show any actual damage or to post security or other bond; or (ii) a decree for specific performance of the applicable provision of this Agreement. Notwithstanding the termination or expiration of this Agreement, the obligations of the Receiving Party, with respect to the Confidential Information of Disclosing Party, shall be in full force and effect as follows: (A) in the case of any information or materials that constitute a trade secret within the meaning of applicable law, for as long as such information and materials remain as a trade secret, or (B) in the case of any other information or materials, during the term of this Agreement and for a period of five (5) years following the termination or expiration of this Agreement.
12.3. The Receiving Party’s obligations under this subsection will not apply to any portion of the Disclosing Party’s Confidential Information if the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by employees of the Receiving Party who had no access to such information, without use of or reference to the Disclosing Party’s Confidential Information, and without breach of this Agreement. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. Any Confidential Information required to be disclosed shall otherwise remain subject to the terms and conditions of this Agreement.
12.4. The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party (including without limitation all copies, extracts and summaries thereof) in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the expiration or termination of this Agreement, whichever comes first. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this subsection.
12.5. Customer will not disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors under a duty of confidentiality except (a) as required by law; (b) pursuant to a mutually agreed to press release; or (c) in connection with a proposed merger, financing, or sale of Customer’s business (provided that any third party to whom the terms of this Agreement are to be disclosed signs a confidentiality agreement reasonably satisfactory to RADIAN).
13. Ownership of RADIAN Offering.
13.1. Customer acknowledges that it is obtaining only a limited right to use the RADIAN Offering to the extent expressly granted herein and that irrespective of any use of the word’s “purchase”, “sale” or like terms in this Agreement no ownership rights are being conveyed to Customer under this Agreement. Customer agrees that RADIAN and its suppliers own and retain all right, title and interest in and to all RADIAN Offering and the MSA platform, including without limitation any and all related and underlying technology and documentation and all modifications, enhancements, improvements, new versions, new releases, corrections and derivative works, and all Intellectual
Property Rights in and to all of the foregoing, including as may incorporate Feedback (“RADIAN Property”), and RADIAN expressly reserves all rights not expressly granted herein. Further, Customer acknowledges that the MSA platform as provided by RADIAN is offered as an on-line, hosted solution, and that Customer has no right to obtain a copy of the object code or source code of the MSA platform.
13.2. Customer, from time to time, may submit feedback to RADIAN. Customer grants to RADIAN a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, distribute, perform, display, import, sell, license, offer for sale, make, have made and otherwise exploit the feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same without restriction or obligation of any kind, on account of confidential information, Intellectual Property Rights or otherwise, and may incorporate into its products and services any service, product, technology, enhancement, documentation or other development (“Improvement”) incorporating or derived from any feedback with no obligation to license or to make available the Improvement to Customer or any other person or entity.
14. Governing Law; Dispute Resolution.
a) Direct Dispute Resolution. In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement, whether arising in contract, tort or otherwise, (“Dispute“), the parties shall first use their commercially reasonable efforts to resolve the Dispute. If a Dispute arises, the complaining party shall provide written notice to the other party in a document specifically entitled “Initial Notice of Dispute”, specifically setting forth the precise nature of the dispute (“Initial Notice of Dispute“). If an Initial Notice of Dispute is being sent to RADIAN it must be emailed to firstname.lastname@example.org. Following receipt of the Initial Notice of Dispute, the parties shall consult and negotiate with each other in good faith and, recognizing their mutual interest, attempt to reach a just and equitable solution of the Dispute that is satisfactory to both parties (“Direct Dispute Resolution“). If the parties are unable to reach a resolution of the Dispute through Direct Dispute Resolution within thirty (30) days of the receipt of the Initial Notice of Dispute, then the Dispute shall subsequently be resolved by arbitration as set forth below.
b) IN THE EVENT THAT A DISPUTE BETWEEN THE PARTIES CANNOT BE SETTLED THROUGH DIRECT DISPUTE RESOLUTION, AS DESCRIBED ABOVE, THE PARTIES AGREE TO SUBMIT THE DISPUTE TO BINDING ARBITRATION. BY AGREEING TO ARBITRATE, THE PARTIES AGREE TO WAIVE THEIR RIGHT TO A JURY TRIAL. The arbitration shall be conducted before Ljubljana, Slovenia. The arbitrator shall consider the amount in controversy, the complexity of the factual issues, the number of parties and the diversity of their interests and whether any or all of the claims appear, on the basis of the pleadings, to have sufficient merit to justify the time and expense associated with the requested discovery.
The arbitrator will issue a ruling in writing. Any issue concerning the extent to which any dispute is subject to arbitration, the applicability, interpretation, or enforceability of this agreement shall be resolved by the arbitrator. All aspects of the arbitration shall be treated as confidential and neither the parties nor the arbitrators may disclose the content or results of the arbitration, except as necessary to comply with legal or regulatory requirements. The result of the arbitration shall be binding on the parties and judgment on the arbitrator’s award may be entered in any court having jurisdiction. The arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
c) The parties irrevocably waive any right to a trial by jury. The English language version of this Agreement shall govern in lieu of any translation.
15. General Terms.
15.1. Neither party will assign this Agreement, or delegate its obligations or assign its rights hereunder, without obtaining the prior written consent of the other party, and any attempted assignment in violation of the foregoing will be null and void. For the avoidance of doubt, a change of control, merger or other consolidation, acquisition or reorganization of Customer shall be deemed an assignment hereunder and is not permitted without RADIAN’s prior written consent, which may be withheld or conditioned in RADIAN’s sole and absolute discretion. Notwithstanding the foregoing without Customer’s prior consent, RADIAN may assign this Agreement in connection with a merger, acquisition, reorganization or change of control of RADIAN, including without limitation a sale of all or substantially all of its assets, voting securities or business to which this Agreement relates. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
15.2. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
15.3. Any notice or communication required or permitted under this Agreement will be in writing to the parties at the addresses set forth on the Order Form or at such other address as may be given in writing by either party to the other in accordance with this Section and will be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail. In addition, Customer acknowledges and agrees that RADIAN may provide notices to Customer via email to Customer’s email account on file with RADIAN or through the MSA platform and such notices will be deemed given when sent.
15.4. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
15.5. To the maximum extent permitted by applicable law, these Terms and Conditions, together with the documents referenced herein and all Order Forms and Statements of Work entered into hereunder, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to entering into the Agreement, except as expressly stated in these Terms and Conditions. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into the Agreement (unless such untrue statement was made fraudulently) and that party’s only remedy in respect of any untrue statement shall be for breach of contract as provided in these Terms and Conditions. No supplement, modification, amendment, or waiver of any provision of these Terms and Conditions (or any Order Form or Statement of Work) shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. Customer acknowledges and agrees that its agreement is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form or dependent upon any oral or written, public or private comments made by RADIAN with respect to future functionality or features for the RADIAN Offering.
15.6. Any failure of or delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by an act of government, act of war, acts of terrorism, riot, labor dispute, strike, shortage of materials, natural disaster, fire, earthquake, pandemic, epidemic, flood, failure of internet service providers, failure of utility or telecommunications providers, failure denial of service attacks, failure of suppliers or service providers, or any other event beyond the reasonable control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as commercially practicable.
15.7. RADIAN may use the services of its Affiliates and its and its Affiliates’ third party subcontractors and service providers and shall have the right to permit them to exercise the rights granted to RADIAN hereunder in order to perform RADIAN’s obligations and exercise RADIAN’s rights under this Agreement, provided that RADIAN remains responsible for (i) compliance of any such third parties with the terms of this Agreement and (ii) for the overall performance of this Agreement.
15.8. The Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to the Agreement may enforce it.
15.9. The parties to the Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
15.10. The MSA platform is the commercial software. All RADIAN products were developed fully at private expense.
15.11. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same agreement. Facsimiles and PDFs of a party’s authorized representative's signature shall be deemed to be binding upon such party. The parties agree and acknowledge that this Agreement and any Order Form or SOW may be signed by means of an electronic signature, provided that such signature and any related signing process comply fully with all applicable laws and each party hereby waives any right to raise any defense or waiver based upon execution of this Agreement by means of such electronic signatures or maintenance of the executed agreement electronically.