Article 1. Definitions
The following definitions are used in these terms and conditions.
Additional Fees means any additional applicable fees and charges that arise from exceeding the limits as mentioned in the Order Procedure;
Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity, with “control” meaning a direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;
Availability means the possibility to use the Subscription Services provided by the Supplier;
Confidential Information means any and all information and data furnished by the disclosing party to the receiving party, whether in oral, written, graphic, machine-readable or any other physical or digital form, including but not limited to intellectual property, know-how, trade secrets, designs, drawings, machinery and parts, handbooks, specifications, procedures, materials, elements, samples, formulas, descriptions, source codes, technical information, financial information, software, reports, plans, strategies, data, together with all analyses, compilations, data, studies or other documents prepared by the receiving party which are derived from or in connection with such information or which contain or are based in whole or in part upon such information, and any other documentation and information related to all of the foregoing including any and all intellectual property rights into and/or relating to such information. It includes but is not limited to all carriers containing such information. Such information is “Confidential Information” in case it was marked as such or is reasonably to be interpreted as confidential, which is mainly in case disclosure could jeopardize the commercial or non-commercial interests of disclosing party. Confidential Information disclosed in relation with these Terms, also including such Confidential Information disclosed prior to acceptance of these Terms, does fall under the scope of these Terms.
Customer means the commercial party using the Subscription Services;
Documentation means the user manuals drawn up by Supplier, which can be accessed via this link;
End-User means any kind of user type, such as a system user or a personal user;
License means the License in respect of the source code of Deity (Falcon) granted by Supplier to the Customer;
Non-Availability means the impossibility to use a web service or a web application provided by the Supplier with the Subscription Services;
Order Procedure means the entire procedure starting with logging into the online Deity (Falcon) environment, followed by accepting the applicable Terms, the online payment of the Subscription Services and the order confirmation per e-mail.
Service Level Agreement (SLA) means the commitments made by Supplier regarding the availability, performance and support of the Subscription Services.
Subscription Fees means the fees as specified on the Order Procedure, excluding any Additional Fees.
Subscription Services means those products provided by Supplier on a software-as-a-Service (SaaS) basis which are provided by the Supplier defined in the current product description and Order Procedure;
Subscription Term means i) the initial subscription term and ii) each renewed subscription term, as defined and/or set forth in an Order Procedure;
Supplier means the commercial party providing the Subscription Services, namely DEITY B.V.;
Terms means the following terms and conditions provided in this document for the usage of the Subscription Services;
Third-Party Software means any other software in use by a Customer which is using the Subscription Services according to one or multiple Subscriptions.
Article 2. General terms
Applicable terms. These Terms govern the use of the Subscription Services including the following documents:
the Subscription defined in the Order Procedure;
the Service Level Agreement;
the Documentation ;
Hierarchy of documents. In the event there is a conflict between these documents, the documents must be read as the top document having priority.
Acceptance. These Terms are accepted by:
clicking "accept" or "agree" or similar, where this option is made available; or
using the Subscription Services;
Amendments. The Supplier reserves the right to amend these Terms at any time. The Supplier shall provide the amended terms to the Customer via e-mail or make them available in its web portal. In order to continue using the Subscription Services, these changed terms must be accepted. If the changed terms are not accepted within the announced timeframe, access to the Subscription Services will be terminated by the Supplier. Any further use of the Subscription Services is deemed as full acceptance of the changed Terms.
Article 3. Scope and use of Subscription Services
Scope. The Customer may determine the scope of use of the Subscription Services by selecting one or more Subscriptions according to the applicable product description and the applicable price list.
User Credentials. The End-Users as specified in the Order Procedure shall all receive for the period of the active Subscription, an exclusive, unique user account with exclusive, unique access credentials. The Customer is obliged to ensure that these access credentials cannot be used by third-parties or for purposes other than the agreed upon use of the Subscription Services according to these Terms. In the event that the Customer is aware of the possibility of misuse or loss of access credentials, he shall inform the Supplier immediately.
Minimum Requirements. It is the sole responsibility of the Customer to comply, at its own expense, with the minimum system requirements for use of the Subscription Services as mentioned in the Documentation and/or Order Procedure.
Acceptable Use. unless this is expressly defined in these Terms, Customer shall not and shall not permit End-Users and third-parties to:
violate an existing security measure set up by the Supplier or violate a condition defined by the Supplier for the use of the Subscription;
make the Subscription Services available to a third-party in whole or in part outside of the scope of the Subscription;
alter or remove the copyright notices, trademarks or other proprietary rights or other communications of the Supplier;
use the Subscription Services in connection with any unlawful, offensive, offensive, pornographic, harassing, defamatory or otherwise inappropriate content or materials.
use any data, content or services of the Supplier that are not defined in these Terms;
reconstruct, decompile, disassemble, or otherwise attempt to learn the source code of the Subscription Services or parts of the Subscription Services;
use the Subscription Services to perform performance tests, system tests, or any other tests that adversely affect the use of the Subscription Services.
Deletion. The Supplier reserves the right to delete contents of the Customer from the Subscription Services if the Supplier has reason to believe that the content is illegal, infringing or in any way abusive or otherwise inappropriate and/or violates Article 3.5.
Test environment. Depending on the type of Subscription chosen, the Customer may have access to one or multiple test environments. The use of the Subscription Services in the test environment is expressly permitted only for test purposes.
Free trial. Depending on the type of Subscription chosen, the Customer may receive a free trial for a certain period as specified in the Order Procedure. If the Customer does not cancel before the end of the free trial, Supplier shall automatically charge the Customer with a monthly Subscription.
Availability. The Subscription Services may not be available in or for all countries or territories and will only be available in selected languages. The Supplier expressly disclaims any representation or warranty that certain data, features or abilities are available.
Changes. The Supplier is striving to improve the Subscription Services continuously. Therefore the Supplier reserves the right to change the Subscription Services from time-to-time. The Supplier will endeavor to inform all Customers about major changes as early as possible via e-mail or web portal. If such a change has such a disadvantageous effect on the Subscription used by the Customer, the sole and exclusive remedy may be termination of the Subscription.
Article 4. Use with Third-Party Software
Use with Third-Party Software. The Customer may use the Subscription Services with Third-Party Software. The Customer ensures that the use only takes place under these Terms, the Order Procedure and the Documentation.
Prohibition. The Supplier reserves the right to prohibit the integration and/or use with Third-Party Software for a Customer in individual cases and will inform the Customer of such prohibitions.
Article 5. Confidentiality
Confidential Information. Customer and Supplier will both maintain confidentiality with regard to all information they receive from one another which has been classified as Confidential Information or must reasonably be understood to be confidential due to the nature of the information. The Customer and the Supplier both shall take reasonable precautions to prevent any unauthorized use, disclosure, publication, or dissemination of confidential information of the other party.
Article 6. License
Supplier hereby grants Customer a royalty free, non-perpetual, non-sub-licensable, non-exclusive license to use (a part of) the source code of Deity (Falcon), subject to the Terms set forth herein and limited to the scope as defined in the Order Procedure. Customer is aware that the sole purpose of this license and the reason access is given to the source code at all is for the strict purpose of enabling customer to use and expand upon Deity (Falcon) as described in the Subscription Services.
This license becomes effective upon using, downloading, installing, copying, or accessing Deity (Falcon), or by agreeing to these Terms.
Except as provided otherwise herein, Customer shall not rent, lease, sublicense, sell, assign, loan, or otherwise transfer the source code. Customer shall not, and shall not permit any third party, to reverse engineer, decompile, or disassemble the source code.
Customer may not remove or destroy any product identification, copyright notices, or other proprietary markings or restrictions from the source code. All titles, trademarks, and copyright and restricted rights notices shall be reproduced on its back up copy.
Customer may not modify or adapt the source code, merge the source code into another program or create derivative works based upon the source code.
Article 7. Intellectual Property Rights
No Transfer of Ownership. All right, title and interest in and to the Subscription Services and Supplier’s Confidential Information, and any modifications, enhancements and improvements thereto, including all intellectual property and proprietary rights therein, are and at all times shall remain the sole and exclusive property of Supplier and its licensors, and shall be subject to the terms and conditions of these Terms. No ownership of any intellectual property rights relating to the Subscription Services or any other information or material provided by the Supplier is assigned or transferred to the Customer. All such intellectual property rights are protected by provisions of international treaties and applicable laws. The structure, organization and code of the Subscription Services are the valuable trade secrets and confidential information of the Supplier, its licensors and Affiliates.
No Implied Grants. Except as explicitly granted by the Supplier in these Terms, no other rights, licenses, releases, covenants not to sue or other rights or immunities, express or implied, by estoppels or otherwise are granted by the Supplier to the Customer. Notwithstanding anything to the contrary in these Terms, no rights or licenses, whether express or implied, are granted by the Supplier to the Customer to any technologies that may be necessary for the use of the Subscription Services (e.g., operating systems, communication protocols or cellular technologies) but that are not included in the Subscription Services provided by the Supplier.
Feedback. The Customer may provide the Supplier either directly or via third-party sites and tools with information and feedback concerning errors, suggestions for improvements, ideas, problems, complaints, and other matters related to the Subscription Services (together "Feedback"). The Customer acknowledges and agrees that:
to not retain, acquire or assert any intellectual property right or other right, title or interest in or to the Feedback;
the Supplier may have development ideas similar to the Feedback;
Feedback does not contain confidential information or proprietary information from the Customer or any third-party; and
the Customer is not under any obligation of confidentiality with respect to the Feedback. In the event the transfer of the ownership to the Feedback is not possible due to applicable mandatory laws, the Customer grants the Supplier and the Supplier's Affiliates an exclusive, transferable, irrevocable, free-of-charge, sub-licensable, unlimited and perpetual right to use (including copy, modify, create derivative works, publish, distribute and commercialize) Feedback in any manner and for any purpose.
Article 8. Fees and Payment
Subscription Fees. Customer shall pay the Subscription Fees, including any Additional Fees, as mentioned in the Order Procedure . Additional Fees shall be billed at the end of each billing cycle, provided that the Additional Fees do not exceed the monthly Subscription Fees as specified in the Order Procedure . If the Additional Fees exceed the monthly Subscription Fees as specified in the Order Procedure, the Additional Fees shall be charged immediately to the Customer.
Changes. The Supplier reserves the right to adjust the fees. The Supplier shall notify such changes in advance to the Customer. Such changes will be effective only if the Subscription is renewed. If the Customer does not agree to the changes, the Customer may terminate the Subscription as a single and exclusive remedy by terminating the use of the Subscription Services and accessing the Subscription Services and notifying the Supplier in writing and requesting to terminate an automatic renewal of the Subscription. Subscription Fees, Additional Fees and other charges will not be refunded, unless this is mandatory by applicable law or expressly in these Terms.
Upgrades. The Customer can request an upgrade of its Subscription at all times during the Subscription Term. An upgrade shall enter into force on the date of the request. The applicable Subscription Fees shall be prorated accordingly.
Downgrades. The Customer can request a downgrade of its Subscription at all times during the Subscription Term. A downgrade shall enter into force on the date of a new Subscription Term.
Payments. Customer acknowledges that the Subscription Fees are charged automatically on a recurring basis until the Customer cancels its Subscription.
Statutory Commercial Interest. If the Customer fails to timely pay an invoice it will be in default without a notice of default being required. In such an event, Supplier will be entitled to the statutory interest specified in article 119a and 120 of Book 6 of the Dutch Civil Code (statutory commercial interest) and to compensation of actual and reasonable court costs, out-of-court costs and other enforcement costs.
Objections. Any objections to invoiced amounts must be communicated to Supplier within 30 days after the fees have been charged to the Customer. If the Customer fails to make an objection, the charges will be deemed to have been accepted. In determining the amounts payable by the Customer, the back office data maintained by Supplier will be decisive, unless the Customer demonstrates that this data is inaccurate.
Taxes. Customers located outside of the European Economic Area may be charged taxes in their country. Supplier cannot control such taxes and is not responsible for charges as a result of this taxation. Customers located within the European Economic Area will have VAT reverse charged, except for customers located in the same country as Supplier, who will be charged VAT according to the national regulations.
Article 9. Term and Termination
Term. These Terms, and the right to access and use the Subscription Services, commences and shall become effective shall become effective and binding on the date of Acceptance by the Customer and shall remain in full force and effect until each Subscription Term set forth in an Order Procedure has been terminated by the Customer.
Termination by Customer. An annual Subscription will be automatically renewed with a 12- month period, unless termination of the Subscription takes place one month prior to the renewal date. A monthly Subscription will be automatically renewed with a month, unless termination of the Subscription takes place one day prior to the renewal date. The account of the Customer remains active until the end of the Subscription Term. Cancelling your subscription can be done in the following ways:
You may cancel your subscription at any time by contacting the sales department at firstname.lastname@example.org or through the web chat feature on our website https://deity.io. Please provide the email address linked to your subscription. One of our representatives will cancel the subscription for you.
When using the Falcon for BigCommerce App, you may cancel your subscription at any time by logging in to your BigCommerce dashboard and uninstalling the Falcon App. Uninstalling the App from BigCommerce will automatically and immediately cancel your subscription.
Termination by the Supplier. The Supplier is entitled to terminate at any time without liability or refunds to the Customer or (temporarily) suspend access to the Subscription Services if:
the Customer is in violation with these Terms. If the violation of the Terms is a minor breach (to the sole discretion of Supplier) it will be awarded a fourteen (14) days term to remedy such violation. If, in a sole opinion of Supplier, the breach is deemed as a major breach then the Supplier reserves the right to immediately terminate the use of the Subscription Services by the Customer and to block access and terminate the Subscription, or
any usage limits or other limits applicable to the Subscription Services is exceeded the Supplier may suspend Customer’s access to the Subscription Services or terminate the Subscription or both, to Supplier’s discretion.
the Customer has applied for, or has been granted, suspension of payments, or has been declared bankrupt, or if a bankruptcy petition has been filed on its behalf or by its creditors.
Effects of Termination. Immediately upon expiry or termination of the Subscription, the license to the Subscription Services automatically terminates and the Customer must cease all use and distribution of the application that uses or includes the Subscription Services or parts thereof and the Customer must no longer make use of the Subscription Services; the Customer will no longer have access to the Subscription Services. If the Customer has gained access to the source code, Customer must destroy any and all copies of the source code, and all other related materials received from the Supplier whether directly or through an authorized distributor within 14 days from expiry or termination. Fees paid for a Subscription are not refundable and the Supplier has no obligation to return any Subscription Fees and/or Additional Fees due to termination of the Subscription for any reason unless otherwise explicitly stated in these Terms or provided by applicable mandatory law. The Supplier has no obligation to return the Customer's content but the Supplier will delete the Customer's content after the termination of the Subscription.
Survival. This section and sections 2 (General Provisions), 3.5 (Acceptable Use), 5 (Confidentiality), 6 (Intellectual Property Rights), 7 (Fees and Payment, to the extent due amounts remain unpaid), 9 (Representations and Warranties), 10 (Indemnity), 11 (Limitation of Liability), 12 (Miscellaneous) hereof and any other rights and obligations of the Customer and Supplier hereunder that by their nature are reasonably intended to survive termination or expiration, shall survive any termination or expiration of these Terms.
Article 10. Representations and Warranties
Representations and Warranties by the Customer and the Supplier. The Customer and the Supplier represents and warrants to the other that:
they have all requisite power and authority to execute these Terms and to perform its obligations hereunder;
The execution and delivery of these Terms will not conflict with or violate any other agreement to which it is a party; and
It is not a party identified on any governmental export exclusion or denied party lists.
Representations and Warranties by the Customer. The Customer represents and warrants:
to comply with all applicable laws, these Terms, any documentation, technical guidelines and other requirements as the Supplier may provide from time to time with respect to the Customer's use of any of the Subscription Services;
to implement and comply with appropriate data privacy and security measures in connection with the Customer's collection, processing, transfer and use of personal data, if any, and that the Customer has all necessary consents required for processing of such personal data in accordance with these Terms;
to not violate, misappropriate, or infringe any intellectual property rights, rights of privacy, or rights of personality or any other right of any third-party or of the Supplier;
the application and the Customer's content do not contain or distribute any viruses, spam, files, code malware or any other malicious software programs, technology or content that may harm or disrupt the operation of the Subscription Services; and
to exercise all legally required care and diligence in connection with the design, manufacture, workmanship, testing, distribution and operation of the application.
Exclusion of Warranties. Except as otherwise provided in these Terms, the Subscription Services are provided on an "as is" and "as available" basis. The Customer expressly understands and agrees that the use of the Subscription Services is at the Customer's sole risk. The Supplier, its Affiliates, suppliers, and licensors make no warranty that the Subscription Services will be uninterrupted, secure, or error free, or that defects in the Subscription Services will be corrected. The Supplier, its Affiliates, suppliers and their licensors specifically disclaim, to the maximum extent not prohibited by applicable law, any representations or warranties, express, implied, statutory, or otherwise regarding the Subscription Services, including any implied warranty of merchantability, fitness for a particular purpose, non-infringement, title or any implied warranties arising from course of dealing or performance.
Article 11. Indemnity
Indemnity . The Customer agrees to defend, indemnify and hold harmless the Supplier and its Affiliates, contractors, Suppliers and licensors from and against all third-party claims and all liabilities, assessments, losses, costs and damages resulting from or arising out of (i) the Customer's breach of these Terms, (ii) any use of the Subscription Services or any information derived therefrom by the Customer or any third-party; and (iii) the Customer's infringement or violation of any intellectual property rights or other rights of a third-party. The Customer hereby agrees to fully cooperate as reasonably requested in the defense of any claim. The Supplier reserves the right to alone assume the defense and control of any claim that is subject to your above indemnification.
Article 12. Limitation of Liability
Limitation. To the maximum extent not prohibited by applicable law, in no event shall the Supplier, its Affiliates, their employees, directors, Suppliers or licensors be liable for any lost profits, revenue, sales, data, or cost of procurement of substitute goods, software or services, property damage, personal injury, interruption of business, loss of business information, or for any special, direct, indirect, incidental, economic, cover, exemplary, punitive, or consequential losses or damages, however caused and whether arising under contract, tort, negligence, or other theory of liability arising out of or related to (i) these Terms; or (ii) the use of or inability to use the Subscription Services, even if advised of the possibility of such losses or damages. Because some jurisdictions do not allow the exclusion of liability, but may allow liability to be limited, in such cases the liability of the Supplier, its Affiliates, their employees, directors Suppliers and licensors shall be limited to the Subscription Fees of one month.
Article 13. Miscellaneous
Force Majeure. Supplier will not be required to fulfill any obligation if it is prevented from doing so as a result of circumstances beyond its control, i.e., force majeure. ‘Force majeure’ refers to the circumstances set out in Article 75 of Book 6 of the Dutch Civil Code. Supplier will, at its own expense, take all reasonably possible and expected measures and use the available alternative resources to prevent the resulting failure to comply as much as possible or, at any rate, mitigate the impact of such failure on the Customer. If the force majeure event lasts longer than thirty (30) days, the Customer will be entitled to terminate the Subscription Services by a written notification, unless it is foreseeable that the force majeure event will be resolved within a reasonable period of time. In such an event, any products supplied or services provided in related to the Subscription Services up to that time will be payable in proportion, without Supplier and Customer having any further obligations to one another.
Assignment. Supplier is entitled to assign the rights and obligations under these Terms to any third-party. In such an event, the Customer will not withhold or delay its cooperation on unreasonable grounds. If Supplier decides to assign its rights and obligations under these Terms, it will notify the Customer accordingly. The Customer cannot assign the rights and obligations under these Terms to a third-party without Supplier’s prior written consent.
Severability. If any provisions or parts of provisions from these Terms are or become unlawful, invalid or non-enforceable in any manner, the other provisions or the valid portion of the invalid provision will remain in full effect and enforceable, without affecting any of the other obligations of both Supplier and Customer. Furthermore, the unlawful, invalid or non-enforceable provision will be deemed to have been replaced by a provision whose legal and commercial tenor will match the invalid or non-enforceable provision as closely as possible.
Notices. Customer shall send any and all notices relating to these Terms to the address of the individual or department designated for this purpose. Supplier and Customer can and may use electronic means of communication regarding the Subscription Services and/or these Terms; such communication will be considered equal to written communication.
Exclusions. The United Nations Convention of Contracts for the International Sale of Goods shall not apply to these Terms.
Governing Law and Dispute Resolution. These Terms shall be construed and governed by the substantive laws of The Netherlands. If there is a dispute between the Customer and the Supplier as to matters arising out of or related to these Terms, or the validity, enforceability or interpretation of these Terms, then the Customer and the Supplier irrevocably submit to the exclusive jurisdiction of the courts in Rotterdam.