ERP.net Corporation Ltd (“ERP”, “we” or “us”), together with its wholly owned subsidiaries (collectively "ERP.net") created the ERP.net Cloud Platform. These Terms are between you and the ERP.net that owns and operates the ERP.net Cloud Platform. They apply to the cloud software named above and any ERP.net services or software updates, except to the extent such services or updates are accompanied by new or additional terms.
“You” means the entity you represent in accepting this Agreement or, if that does not apply, you individually. If You are accessing and/or using the ERP Cloud Platform on behalf of Your employer or as a consultant or agent of a third party (collectively "Your Company"), You represent and warrant that You have the authority to act on behalf of and bind Your Company to the Terms of this Agreement and everywhere in this Agreement that refers to You or Your, shall also include Your Company.
“Administrators” means User, appointed by and acting on behalf of Customer, who has control over other the use of the Cloud Service, including submitting Subscription Orders, purchasing or enabling Third-party Application, creating, monitoring, modifying, changing permissions or deleting Users.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Authorized User” means any individual to whom Customer grants access authorization to use the Cloud Service that is an employee, agent, contractor or representative of Customer, Customer's Affiliates, and/or Customer’s and Customer’s Affiliates’ Business Partners.
“Beta Services” means services or functionality that may be made available to Customer 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.
“Billing Period” means the interval at which the Customer is charged for the Purchased Services under this Agreement, which is to be specified in the applicable Subscription Order.
“Bug” means any failure of the Services that results in a complete stop, error traceback or security breach, and is not directly caused by a defective installation or configuration. Non-compliance with specifications or requirements will be considered as Bugs at the discretion of ERP.net (typically, when the Services does not produce the results or performance it was designed to produce, or when a country-specific feature does not meet legal accounting requirements anymore). Any failures, arising from Beta Services, would not be treated as Bugs.
“Bundle” means a collection of custom objects, scripts, data, or modification of standard objects, created by Third-Party, that connects and integrate ERP.net cloud platform in a way, that it becomes an integral part of the final product (Bundle).
“Business Partner” means a legal entity that requires use of a Cloud Service in connection with Customer’s and its Affiliates’ internal business operations. These may include customers, distributors, service providers and/or suppliers of Customer.
“Cloud Materials” mean any materials provided or developed by ERP.net (independently or with Customer’s cooperation) in the course of performance under the Agreement, including in the delivery of any support or Consulting Services to Customer. Cloud Materials do not include the Customer Data, Customer Confidential Information or the Cloud Service.
“Cloud Service” means any distinct, license-based, hosted, supported and operated on demand solution provided by ERP.net under a Subscription Order.
“Consulting Services” means professional services, such as implementation, configuration, custom development and training, performed by ERP’s employees or subcontractors as described in any Subscription Order and which may be governed by the Supplement.
“Customer Data” means electronic data and information submitted by or for Customer to the Services.
“Customer” means in the case of an individual accepting this Agreement on their own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain Affiliates) which have entered into Subscription Orders.
“Documentation” means the applicable Service’s Trust and Compliance documentation accessible at Documentation page and its usage guides and policies, as updated from time to time.
“Fees” – means the sum of all accumulated License Fees, Transaction Fees and the Additional Fees.
“Free Services” means Services that ERP.net makes available to Customer and Users free of charge. Free Services exclude Services offered as a free trial and Purchased Services.
“Hyperlinks” means links to web pages placed in text of this Agreement, in order to facilitate the readers and the Customers, containing Documentation and additional information. In view of the dynamic nature and possible frequent changes, any changes in these Hyperlinks, as well as any other links to web pages in this Agreement, are not considered to be a change or modification of the same. Some of the Hyperlinks used in this Agreement:
- Main page – https://www.erp.net
- Resellers web page - https://info.erp.net/legal
- Help Page - https://info.erp.net/legal
- Marketplace page - https://info.erp.net/legal
- Billing e-mail – firstname.lastname@example.org
- Documentation page - http://docs.erp.net
- Privacy and DPA page – https://info.erp.net/legal/privacy.html
- Support site - https://support.erp.bg/hc/en-us
- Announcements blog - https://support.erp.bg/hc/en-us/sections/201834599-Announcements
“Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Marketplace” means the official marketplace for applications and modules, hosted by ERP.net on Marketplace page, that interoperate with the Services.
“Third-party Application” means a Web-based, mobile, offline, or other software application functionality that interoperates with a Service, that is provided by Customer or a third party and/or listed on a Marketplace. Third-party Application, other than those obtained or provided by Customer, will be identifiable as such.
“Open-Source Software” means any software that is subject to terms that, as a condition of access, use, copying, modification or redistribution, require such software or derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge, including without limitation software distributed under the GNU Affero General Public License, GNU General Public License or GNU Lesser/Library GPL.
“Subscription Order” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Customer and ERP.net or any of their Affiliates, including any supplements thereto. By submitting a Subscription Order hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Professional Services” means the general consulting, implementation and/or training services to be provided to Customer pursuant to the terms hereof.
“Purchased Services” means Services that Customer or Customer’s Affiliate purchases under a Subscription Order or online purchasing portal, as distinguished from Free Services or those provided pursuant to a free trial.
“Reseller” means an entity authorized by ERP.net to resell or licenses for Cloud Service or Bundles under this agreement.
“Services” means the products and services that are ordered by Customer under a Subscription Order or online purchasing portal or provided to Customer free of charge (as applicable) or under a free trial and made available online by ERP.net. “Services” exclude Third-party Application.
“Agreement Term” means the term of this Agreement, identified in the applicable Subscription Order, including all renewals. If no Contract End Date is specified on the Subscription Order, this Agreement is concluded for an indefinite period of time and shall automatically renew every month unless terminated according to the provisions hereunder.
“Supplement” means the supplemental terms and conditions that apply to the Cloud Service and that are incorporated in a Subscription Order.
“Support Services” means the supplemental, technical support services to be provided to Customer for the Cloud Service pursuant to the terms hereof. Support Services are subject to additional fees.
“Unforeseen events or actions” means, but not limited to:
- Factors outside our reasonable control (for example, natural disaster, war, acts of terrorism, riots, government action, or a network or device failure external to our data centres, including at your site or between your site and our data centre);
- That result from the use of services, hardware, or software not provided by us, including, but not limited to, issues resulting from inadequate bandwidth or related to third-party software or services;
- Any use of a Service after we advised for its modification, if Customer did not modify it as advised;
- During or with respect to preview, pre-release, beta or trial versions of a Service, feature or software (as determined by us);
- That result from your unauthorized action or lack of action when required, or from your employees, agents, contractors, or vendors, or anyone gaining access to our network by means of your passwords or equipment, or otherwise resulting from your failure to follow appropriate security practices;
- That result from your failure to adhere to any required configurations, use supported platforms, follow any policies for acceptable use, or your use of the Service in a manner inconsistent with the features and functionality of the Service (for example, attempts to perform operations that are not supported) or inconsistent with our published guidance;
- That result from faulty input, instructions, or arguments (for example, requests to access files that do not exist);
- That result from your attempts to perform operations that exceed prescribed quotas or that resulted from our throttling of suspected abusive behaviour;
“Usage Metric” means the standard of measurement for determining the permitted use and calculating the fees due for a Cloud Service as set forth in a Subscription Order.
“User” means, in the case of an individual accepting these terms on their own behalf, such individual. In the case of an individual accepting this Agreement on behalf of a company or other legal entity, user is an individual who is authorized by Customer to use a Service, for whom Customer has purchased a license (or in the case of any Services provided by ERP.net without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, ERP.net at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors, and agents of Customer, and third parties with which Customer transacts business.
3. Terms of the Agreement
Subject to the terms and conditions of this Agreement, Customer shall have the non-exclusive, worldwide, limited right to use the Cloud Service, Support Services and Professional Services ordered by Customer (collectively, the “Services”) during the applicable period set forth in Customer’s Subscription Order solely for the internal business operations of Customer. Customer may allow its Users to use the Services for this purpose, and Customer is responsible for their compliance with this Agreement and Customer’s applicable Subscription Order. The terms of this Agreement shall also apply to updates and upgrades subsequently provided by ERP.net to Customer for the Cloud Service.
3.2. Subscription Orders
The Services shall be ordered by Customer pursuant to Subscription Orders. Each Subscription Order shall include at a minimum a listing of the Cloud Service and any Support Services and/or Professional Services being ordered and the associated fees. Except as otherwise provided on the Subscription Order, or this Agreement, once placed, each Subscription Order is non-cancellable, and all sums paid are non-refundable. If Customer exceeds the quantity of Services ordered, then Customer promptly must purchase and pay fees for the excess quantity.
Any one of Customer’s Affiliates may also order Services under this Agreement by submitting a Subscription Order, signed by such subsidiary and ERP.net, and agreeing to be bound by the terms of this Agreement.
These Terms are effective as of the date you first click “I agree” (or similar button or checkbox), use or access a Cloud Services, or you fill and submit a Subscription Order, whichever is earlier (the “Date”). This Agreement does not have to be signed in order to be binding. You indicate your assent to this Agreement by clicking “I agree” (or similar button or checkbox) at the time you register for a Cloud Services, create a Cloud Services account, or place a Subscription Order. For Free Services, you also indicate your assent to this Agreement by accessing or using the applicable Free Service.
If you are accepting on behalf of your employer or another entity, you represent and warrant that:
- you have full legal authority to bind your employer or such entity to this Agreement;
- you have read and understand this Agreement;
- you agree to this Agreement on behalf of the party that you represent.
If you don’t have the legal authority to bind your employer or the applicable entity, please do not click “I agree” (or similar button or checkbox) that is presented to you.
If you sign up for a cloud product using an email address from your employer or another entity, then (a) you will be deemed to represent such party, (b) your click to accept will bind your employer or that entity to these terms, and (c) the word “you” in these terms will refer to your employer or that entity.
3.4. Changes to the Terms
The Effective Date of this Agreement is set forth at the top of this Agreement. As we add new features, we may revise or supplement this Agreement. We will provide you with advance notice of material revisions to this Agreement. We will not make revisions that have a retroactive effect unless we are legally required to do so or to protect other Users of the Services. Your continued use of the Services after the Effective Date constitutes your acceptance of this Agreement, as amended. As of the Effective Date, the amended Agreement supersedes all previous versions of or Agreements, notices or statements about this Agreement.
3.5. Additional terms
Certain features of the Services may be subject to additional terms (“Supplement”) presented in conjunction with them. Regardless of how they are presented to you, you must agree to Supplements before using the features of the Services to which they apply. Unless otherwise specified in the Supplements, all additional terms are incorporated into this Agreement. If you do not agree to the Supplements, then you may not use the Services to which they relate. This Agreement and the Supplements apply equally but, if any additional term is inconsistent with any provision of this Agreement, the additional term will prevail for the Services to which the additional terms apply.
4. Customer rights and responsibilities
4.1.1. Access to Cloud Services
Subject to and for the duration of this Agreement, Customer may access and use the Cloud Services for their own business purposes or personal use, as applicable, all in accordance with the Agreement, the applicable Subscription Order and the Documentation. The rights granted to the Customer in this section are non-exclusive, non-sublicensable and non-transferable.
For the duration of this Agreement, ERP.net will provide Support for the Cloud Services in accordance with section 6.2., and the applicable Subscription Order.
4.1.3. Beta Services
From time to time, ERP.net may make Beta Services available to Customer at no charge, or at ERP.net sole discretion, reduce the price for a limited time period, for some or all Services. Customer may choose to try such Beta Services or not in its sole discretion.
4.1.4. Free Trial
If Customer registers on ERP.net’s or an Affiliate’s website for a free trial, ERP.net will make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service ordered by Customer for such Service(s), or (c) termination by ERP.net in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
4.1.5. Free Services
ERP.net may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall prevail. Free Services are provided to Customer without charge up to certain limits as described in the Documentation. Usage over these limits requires Customer’s purchase of additional resources or services. Customer agrees that ERP.net, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that ERP.net will not be liable to Customer or any Third-party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if ERP.net terminates Customer’s account, except as required by law ERP.net will provide Customer a reasonable opportunity to retrieve its Data.
4.2.1. General Usage Restrictions
Customer may not, may not cause or permit others to: (a) use the Services to harass any person; cause damage or injury to any person or property; publish any material that is false, defamatory, harassing or obscene; violate privacy rights; promote bigotry, racism, hatred or harm; send unsolicited bulk e-mail, junk mail, spam or chain letters; infringe property rights; or otherwise violate applicable laws, ordinances or regulations; (b) perform or disclose any benchmarking, availability or performance testing of the Services; or (c) perform or disclose any performance or vulnerability testing of the Services without ERP.net’s prior written approval, perform or disclose network discovery, port and service identification, vulnerability scanning, password cracking, remote access or penetration testing of the Services.
Customer may not, and may not cause or permit others to: use Malicious Code, modify, make derivative works of, disassemble, decompile, reverse engineer, reproduce, republish, download, or copy any part of the Services (including data structures or similar materials produced by programs) or license, sell, transfer, assign, distribute, outsource, permit timesharing or service bureau use of, commercially exploit, or make available the Services to any third party except as permitted by this Agreement or Subscription Order.
4.2.2. Data protection
Unless specifically included in the Subscription Order, the Customer must not use the Cloud Service to store or process any sensitive or special categories of data that imposes specific data security or data protection obligations on ERP.net in addition to or different from those specified or referenced in the Subscription Orders for the Services.
4.2.3. Verification of Use
Customer will monitor its own use of the Cloud Services and report any use in excess of the Usage Metrics and volume. ERP.net may monitor use to verify compliance with Usage Metrics, volume and the Agreement.
4.2.4. Support Site Registration
The Customer shall register an account at ERP.net’s Support site (https://support.erp.bg), using the Administrative Contact name and email address specified on the Subscription Order. The Customer shall use the account to subscribe to the Announcements blog (https://support.erp.bg/hc/en-us/sections/201834599-Announcements), accessible from the Support site. The Customer is deemed to have notice of all announcements communicated through the Announcements blog on the Support site.
Administrators and Customer must require that all Users keep their user IDs and passwords for the Cloud Services strictly confidential and do not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using User Accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.
4.3.2. Age Requirement for Users
The Cloud Services are not intended for, and should not be used by, anyone under the age of 16. You are responsible for ensuring that all Users are at least 16 years old.
5. User Management
Through the Cloud Services, Customer should specify certain User/s as Administrators, who will have important rights and controls over the use of Cloud Services and User Accounts. This may include submitting Subscription Orders or enabling Third-party Application, creating, de-provisioning, monitoring or modifying User Accounts, and setting User usage permissions; and managing access to Data by Users or others. Without limiting Section 5.3 (Responsibility for Users), you are responsible for whom you allow to become Administrators and any actions they take, including as described above. You agree that ERP.net responsibilities do not extend to the internal management or administration of the Cloud Services for you.
The appointment of an Administrator does not in any way limit the liability of the Customer. In case of violation of this Agreement, the Administrator/s and the Customer are jointly and severally liable.
For buying and upgrading the Services, as also bug fixes and support, the Customer may either work with an ERP.net Resellers as the main point of contact, or work with ERP.net directly.
If the Customer decides to work with an ERP.net Resellers, ERP.net will subcontract services to the Reseller, who becomes the main point of contact of the Customer. The Reseller may contact ERP.net on behalf of the Customer for assistance regarding standard features of the Cloud Services.
5.2.1. Acceptance of Terms
Resellers will perform certain functions associated with the purchase, activation, support and management of Cloud Services. Each Customer must accept this Agreement to order Cloud Services from Resellers. If ERP.net updates the Cloud Services, then Customer must accept the new Cloud Services. If Customer does not accept the terms of the Cloud Services, Resellers shall be liable to ERP.net for any costs and damages incurred by ERP.net as a result of such failure.
5.2.2. Buying through a Reseller
Every Customer who buys a Cloud Service through Resellers should verify whether they are part of the official lists of licensed Resellers located on the Reseller web page. ERP.net is not liable for any damages caused to the Customer by unregistered Reseller.
Any additional Services, including support, account management, Bundles and special offers are provided according to the additional rules for Resellers located on the ERP.net Reseller web page. The ERP.net limits its liability for any actions and omissions of a Reseller, subject to the limitations in section 12, and may, at their discretion, assist a Customer in resolving the issue.
5.2.4. Resellers as Administrators
If Customer order Cloud Services through a Reseller, then the Customer is responsible for determining whether the Reseller may serve as an Administrator and for any related rights or obligations in the applicable agreement with the Reseller. As between Customer and ERP.net, you are solely responsible for any access by Reseller to your accounts or your other User Accounts.
5.3. Responsibility for Users
Some Cloud Services require Users to be designated by Administrators and some may allow Users to invite other Users. The appointed Administrator is responsible for understanding the settings and controls for each Cloud Service you use and for controlling whom you allow to become a User. If payment is required for Users to use or access a Cloud Services, then we are only required to provide the Cloud Services to those Users for whom you have paid the applicable fees, and only such Users are permitted to access and use the Cloud Services. Some Cloud Services may allow you to designate different types of Users, in which case pricing and functionality may vary according to the type of User. You are responsible for compliance with this Agreement by all Users, including for any payment obligations. You are responsible for the activities of all Users, including Subscription Orders they may place and how Users use Your Data, even if those Users are not from your organization or domain. The Administrator and the Customer are directly responsible for any damages resulting from User activity.
6. Platform rights and responsibilities
6.1. System Availability
6.1.1. Service Level Commitment
ERP.net commits to provide 99.5% uptime with respect to the Customer’s Service for every month of the duration of the Agreement, excluding regular maintenance times and Unforeseen events or actions.
If in any calendar month this uptime commitment is not met by ERP.net and Customer was negatively impacted (i.e., attempted to log into or access the Service and failed due to the unscheduled downtime of the Service), ERP.net shall provide, as the sole and exclusive remedy, a credit note equal to 50% of a monthly fee for the use of the Service.
6.1.2. Scheduled and Unscheduled Maintenance
Scheduled maintenance times does not count as downtime. Unscheduled Maintenance will be counted against the uptime guarantee unless such maintenance is preformed when it’s necessary to ensure a higher level of security and stability of the Services.
18.104.22.168. Scheduled Maintenance
Maintenance time is scheduled if it is communicated with an Administrator at least two full business days in advance of the maintenance time. Scheduled maintenance time typically is to occur at night on the weekend. Scheduled maintenance is performed once or twice a year.
22.214.171.124. Unscheduled Maintenance
ERP.net in its sole discretion may take the Service down for Unscheduled maintenance and in that event will attempt to notify Customer and/or Administrator in advance. Unscheduled Maintenance, which is performed when it’s necessary to ensure a higher level of security and stability of the Services will be typically scheduled to occur at night - 10:00 pm - 12:30 am, based on the time zone of the Cloud Server location, chosen by Administrator or Customer in the Subscription Order, and should not exceed one hour.
6.1.3. Postponement of an update
Depending on the Support Services and Usage Limits, specified in the Subscription Orders by the Customer, ERP.net offers shared or private servers to its Customers.
Customers who use shared servers do not have the opportunity to postpone scheduled upgrades and such are done according to the information on the official site and by the terms in Section 6.1.2.
Customer with private servers have the option to postpone the update. The updates can be postponed only once and for maximum 1 (one) month. Customer should open a support ticket, based on the procedure in Section 6.2., indicating the period for which the update should be postponed.
Non-updated servers pose security and maintenance risks, therefore ERP.net cannot guarantee the normal operation or full functionality of the system during this time. ERP.net will not be responsible, during this period, for any data leaks, security problems, system malfunction or difficulties accessing the Cloud Services.
6.1.4. Credit note request
In order to receive a credit note under this service level commitment, Customer must request it simply by emailing ERP.net billing e-mail, no later than five days after the end of the applicable month. If Customer submits a credit request and does not receive a prompt automated response indicating that the request was received, Customer must resubmit the request because the submission was not properly received and will not result in a credit. The issued credit note is automatically deducted from the next monthly invoice. ERP.net shall calculate any service level downtime using ERP.net’s system logs and other records.
6.1.5. Refusal of credit
ERP.net reserves the right to refuse to issue a credit note in case any of the following conditions are not met:
- At the time of the system unavailability, the Customer should not be in default or past due any of the payments to ERP.net or their Affiliates.
- Customer should not have breached any of the contractual obligation before or after the system unavailability.
6.2.1. Bugs and problems
For the duration of this Agreement, ERP.net commits to making all reasonable efforts to remedy any Bug of the Cloud Services submitted by the Customer through the appropriate channel (typically, the web form or phone numbers listed on the Help page, or when working with a Reseller, the channel provided by them), and to start handling such Customer submissions within 2 business days.
The period of 2 business days starts from the moment when a complete and detailed report about the Bug/s is provided, which should have a minimum information about: (a) what functionality was used, (b) what was the intended result, (c) what are the steps that were taken before the problem occurred, (d) what was the status of the user who tried to perform the action.
As soon as the Bug is fixed an appropriate remedy will be communicated to the Customer. Both parties acknowledge that as specified in the license of the Cloud Services and in Section 12 of this Agreement, ERP.net cannot be held liable for Bugs in the Cloud Services.
For the duration of this Agreement, the Customer may open up to 10 (ten) support tickets per month for each instance of Cloud Platform they have, free of charge. The support tickets should cover questions regarding Bugs or Performance and Connectivity issues.
Other assistance requests, such as questions related to development or customizations may be covered through the purchase of a separate Support services Agreement. In case it’s not clear, if a request is covered by this Agreement, the decision is at the discretion of ERP.net.
Tickets can be submitted via the web form or phone numbers listed on Help page. If a Customer is working with a Reseller, they can also send tickets through the channel provided by the Reseller, subject to their working hours.
6.3. Third-Party developers
6.3.1. Third-party’s products and services
ERP.net or Third-party may make available (for example, through the Marketplace or otherwise) Third-party products or services, including, for example, Third-party Applications and implementation and other Consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Third-party’s product or service is solely between Customer and the applicable Third-party. ERP.net does not warrant or support Third-party Applications or other Third-party products or services, whether or not they are designated by ERP.net as “certified” or otherwise, unless expressly provided otherwise in a Subscription Order. ERP.net is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-party Application or its provider.
6.3.2. Integration with Third-party Applications
The Services may contain features designed to interoperate with Third-party Applications. ERP.net cannot guarantee the continued availability of such Service features and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-party Application ceases to make the Third-party Application available for interoperation with the corresponding Service features in a manner acceptable to ERP.net.
6.3.3. Removal of Content and Third-party Applications
If Customer receives notice that Third-party Application must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in ERP.net’s judgment continued violation is likely to reoccur, ERP.net may disable the applicable Service and/or Third-party Application. If requested by ERP.net, Customer shall confirm such deletion and discontinuance of use in writing and ERP.net shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if ERP.net is required by any third-party rights holder to remove content or receives information that content provided to Customer may violate applicable law or third-party rights, ERP.net may discontinue Customer’s access to content through the Services.
6.3.4. Marketplace apps and tools
ERP.net offers applications developed by them or by third-parties through its official Marketplace, which are certified and have met the minimum requirements for working with Cloud services and software. However, each Customer has the right to use applications in conjunction with Cloud services that are not downloaded from the Marketplace, and Customer guarantees that they and their work with them will not violate the rules of this Agreement.
ERP.net certifies the various applications so that the Customer can choose safe and reliable applications for their work process. ERP.net ensures that the applications uploaded to the Marketplace (class A) meet the minimum requirements for security and reliability, and that they do not collect unnecessary information about the Customer. All applications that are not in class A are uncertified and ERP.net does not give any guarantees or warranties if the Customer chooses to integrate such applications in its work.
7. Use and restriction of the platform
7.1. Usage Limits
Services are subject to usage limits specified in Subscription Orders and Documentation. If Customer exceeds a contractual usage limit, ERP.net may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding ERP.net’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute a Subscription Order for additional quantities of the applicable Services promptly upon ERP.net’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.
The use of one User account by several different Users is expressly prohibited and will be considered a gross violation of this Agreement, which may result in termination of all Services without notice. This limit doesn’t apply for Business Partners accounts. If a Business Partner should access the system, a request for this is submitted through the platform and a Business Partner account of the given legal entity is created, which can be accessed by several Users.
Additionally, the ERP.net may, at its discretion, provide Free services under section 4.1.5. to Customer who they consider that is classified for them according to the internal ERP.net rules (universities, non-governmental organizations, churches). In such cases, the usage is limited to the resources that the ERP.net has decided to provide free of charge and according to the constraints it deems appropriate for the need of the Customer, stated in the Subscription Order.
7.1.1. Different type of usage limits
Session Based – this is a type of limitation that entitles the Customer to use the Cloud Service by User sessions, regardless of who the individual User is. In this case the number of licenses is equal to the number of User sessions, which can be performed simultaneously by Users of the Customer, which means there are no restriction on the number of registered Users.
User Based – this is a type of limitation that entitles 1 /one/ individual User, identified in an Subscription Order, or in another appropriate way, to use the Cloud Services. In this case, the number of licenses is equal to the number of individual Users who can use the Cloud Services, which means there are restriction on the number of registered Users.
Resource Based – this is a type of limitation that gives the Customer the right to use a certain capacity of the Cloud Services – until a certain load of resources or monthly quota is reached.
Purpose Based – this is a type of limitation that limits the number of records in one instance of the Cloud Services to a certain number or a type (e.g., number of invoices for a month, number of cars, specific type of records etc.).
Functionality Based – defines the functional modules or specific functions of the Cloud Services, which are subject to the license.
Multiple usage limits may be applied to Customer, based on their Subscription Order and personal and business needs.
Customer or Developer, who has developed an application that integrates and requires a license for the ERP.net Cloud Platform, is not allowed to purchase licenses or act as an intermediary or reseller of such in order to sell them in a Bundle.
In case a Customer or a Developer wants to make their application available to other Customers and Users, they can sell it without a license for the ERP.net Cloud Platform through the official Marketplace or through their own channels.
If a Customer or a Developer wants to offer licenses for the ERP.net Cloud Platform, they can sign a Partnership agreement and be included in the official ERP.net reseller lists. If a Customer or a Developer wants, independently of the ERP.net, to develop apps, and offer them in Bundles with ERP.net Cloud Platform licenses, they should sign a separate Developer agreement.
7.3. Reservation of Rights
Subject to the limited rights expressly granted hereunder, ERP.net, its Affiliates and its licensors reserve all of their right, title and interest in and to the Services, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
7.4. Ownership of Customer Data
As between ERP.net and Customer, all title and intellectual property rights in and to the Customer Data is owned exclusively by Customer. Customer acknowledges and agrees that in connection with the provision of the Services, ERP.net may store and maintain Customer Data for a period of time consistent with ERP.net’s standard business processes for the Services. Following expiration or termination of the Agreement or a Customer account, if applicable, ERP.net may deactivate the applicable Customer and User account(s) and delete any data therein. Customer grants ERP.net the right to host, use, process, display and transmit Customer Data to provide the Services pursuant to and in accordance with this Agreement and the applicable Subscription Order. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Data, and for obtaining all rights related to Customer Data required by ERP.net to perform the Services.
7.5. ERP.net Intellectual Property Rights
All rights, title and interest in and to the Services (including without limitation all intellectual property rights therein and all modifications, extensions, customizations, scripts or other derivative works of the Services provided or developed by ERP.net) and anything developed or delivered by or on behalf of ERP.net under this Agreement are owned exclusively by ERP.net or its licensors. Except as provided in this Agreement, the rights granted to Customer do not convey any rights in the Services, express or implied, or ownership in the Services or any intellectual property rights thereto. Any rights in the Services or ERP.net’s intellectual property not expressly granted herein by ERP.net are reserved by ERP.net.
Customer grants ERP.net and its Affiliates a royalty free, worldwide, perpetual, irrevocable, transferable right to use, modify, distribute and incorporate into the Services (without attribution of any kind) any suggestions, enhancement request, recommendations, proposals, correction or other feedback or information provided by Customer or any Users related to the operation or functionality of the Services or its Affiliates’ services.
Except where noticed otherwise in writing, each party grants the other a non-transferable, non-exclusive, royalty free, worldwide license to reproduce and display the other party’s name, logos and trademarks, solely for the purpose of referring to the other party as a customer or supplier, on websites, press releases and other marketing materials.
8. Privacy and Information
8.1.1. Definition of Confidential Information
- “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“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. Confidential Information of Customer includes Customer Data; Confidential Information of ERP.net includes the Services and the terms and conditions of this Agreement and all Subscription Orders (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.
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 ERP.net services.
8.1.3. Protection of Confidential Information
As between the parties, each party retains all ownership rights in and to its Confidential Information. 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).
Each party agrees not to disclose the other party’s Confidential Information to any third party other than as set forth in the following sentence for a period of five years from the date of the disclosing party’s disclosure of the Confidential Information to the receiving party; however, ERP.net will protect the confidentiality of Customer Data residing in the Cloud Service for as long as such information resides in the Cloud Service. Each party may disclose Confidential Information only to those employees, agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement, and each party may disclose the other party’s Confidential Information in any legal proceeding or to a governmental entity as required by law. ERP.net will protect the confidentiality of Customer Data residing in the Services in accordance with the ERP.net security practices applicable to Customer’s Subscription Order as described in this Agreement or such Subscription Order.
Notwithstanding the foregoing, ERP.net may disclose the terms of this Agreement and any applicable Subscription Order to a subcontractor or Third-party Developer to the extent necessary to perform ERP.net’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.
8.1.4. Compelled Disclosure
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
Neither party will use the name of the other party in publicity activities without the prior written consent of the other, except that Customer agrees that ERP.net may use Customer's name in customer listings or quarterly calls with its investors or, at times mutually agreeable to the parties, as part of ERP.net's marketing efforts (including reference calls and stories, press testimonials, site visits). Customer agrees that ERP.net may share information on Customer with its Affiliates for marketing and other business purposes and that it has secured appropriate authorizations to share Customer employee contact information with ERP.net.
8.1.6. Return of Information
Upon written request, Customer will promptly return or destroy (and certify such destruction in writing) all Confidential Information in its possession.
8.2. Data protection
8.2.1. Protection of Customer Data
ERP.net will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). Except with respect to a free trial, the terms of the data processing addendum at Privacy and DPA page are hereby incorporated by reference and shall apply to the extent Customer Data includes Personal Data, as defined in the DPA. To the extent Personal Data from the European Economic Area (EEA), the United Kingdom and Switzerland are processed by us, ERP.net will not transfer personal data outside of EU, except in cases where that was explicitly demanded by the Customer or where it’s strictly necessary for the performance of the Service. In case of a data transfer outside of EEA in case there’s no Adequacy decision under art. 45 GDPR for this country/territory, the Customer agrees to a Standard Contractual Clauses, where Customer and its applicable Affiliates are each the data exporter, and Customer's acceptance of this Agreement, and an applicable Affiliate's execution of a Subscription Order, shall be treated as its execution of the Standard Contractual Clauses and Appendices.
8.2.2. Processing of Personal Data
The parties acknowledge that the Customer’s database may contain Personal Data, for which the Customer is the Controller. This data will be processed by ERP.net the Customer instructs so, or if the Customer transfers their database or a part of their database to ERP.net for any reason pertaining to this Agreement.
This processing will be performed in conformance with Data Protection Legislation. In particular, ERP.net commits to:
- only process the Personal Data when and as instructed by the Customer, and for the purpose of performing one of the Services under this Agreement, unless required by law to do so, in which case ERP.net will provide prior notice to the Customer, unless the law forbids it;
- ensure that all persons within ERP.net authorised to process the Personal Data have committed themselves to confidentiality;
- implement and maintain appropriate technical and organizational measures to protect the Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure;
- forward promptly to the Customer any Data Protection request that was submitted to ERP.net with regard to the Customer’s database;
- notify the Customer promptly upon becoming aware of and confirming any accidental, unauthorized, or unlawful processing of, disclosure of, or access to the Personal Data;
- notify the Customer if the processing instructions infringe applicable Data Protection Legislation, in the opinion of ERP.net;
- make available to the Customer all information necessary to demonstrate compliance with the Data Protection Legislation, allow for and contribute reasonably to audits, including inspections, conducted or mandated by the Customer;
Customer agrees to provide ERP.net with accurate contact information at all times, as necessary to notify the Customer’s Data Protection responsible.
The Customer acknowledges and agrees that in order to provide the Services, ERP.net may use third-party service providers (Subprocessors) to process Personal Data. ERP.net commits to only use Subprocessors in compliance with Data Protection Legislation. This use will be covered by a contract between ERP.net and the Subprocessor that provides guarantees to that effect.
8.2.4. Transmission of Data
Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to use of the Cloud Service. Customer is responsible for cable or another Internet connection and up to date “browser” software in order to utilize the Cloud Service. Customer expressly consents to ERP.net’s interception and storage of Electronic Communications and/or Customer Data as needed to provide the Services hereunder, and Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by ERP.net. Customer further acknowledges and understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone or other electronic means. Without limiting ERP.net’s applicable obligations under this Agreement, ERP.net is not responsible for any Electronic Communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission of any data whatsoever across networks not owned and/or operated by ERP.net, including, but not limited to, the Internet and Customer’s local network.
8.2.5. Access to Customer Data
Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, ERP.net will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, ERP.net will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.
For the duration of the Agreement, Customer can access its Customer Data at any time. Customer may export and retrieve its Customer Data in a standard format. Export and retrieval may be subject to technical limitations, in which case ERP.net and Customer will find a reasonable method to allow Customer access to Customer Data. Before the Agreement Term expires, Customer may use ERP.net’s API (Application Programming Interface) endpoint to perform a final export of Customer Data from the Cloud Service.
In the event of third-party legal proceedings relating to the Customer Data, ERP.net will cooperate with Customer and comply with applicable law (both at Customer’s expense) with respect to handling of the Customer Data.
9. Invoices and Payment
9.1. Billing Models
Billing Models are different approaches for pricing and charging a Customer based on their needs, use of the Services, and purchased licenses. ERP.net offers three types of Billing Models for their Customers. Billing Models are applied to the different Usage limits (see Section 7.1.1). Depending on the details specified in the Subscription Order one Billing Model can be applied to all Usage limits or different Billing Models can be chosen for specific Usage limits.
9.1.1. Types of Billing Models
Subscription Billing Model – You commit in advance to purchase a specific quantity of Services and to pay upfront for each Billing Period as stated on the Subscription Order. Committed quantities not used during the month will expire at the end of it.
Usage Billing Models (Pay-As-You-Go) – You pay based on actual usage in the preceding month with no upfront commitment. Payment is on a periodic basis, according to the Billing Period specified in the Subscription Order.
Combined billing model (Pay-As-You-Grow) – This model combines the above two and it’s applied exceptionally to certain usage limits. Customer commits to specific quantity, which is paid upfront for every Billing Period (Subscription Model). In case the Customer's needs exceed this quantity, they are charged based on certain unit of cost (Usage Model). In the beginning of each Billing Period Customer is billed for all excess usage from the last Billing Period, plus the applicable subscription fee for the next.
9.1.2. Pre-set restrictions
With respect to ERP.net Cloud Services, when Customer has chosen the Subscription Billing Model for a specific Usage limit, all additional or other usage (for example, usage beyond Customer’s commitment quantity) may be transformed to a Combined Billing Model for that particular Billing Period. ERP.net will try to notify Customer and the Administrator before such transformation occurs.
9.1.3. Default Billing Model
Unless otherwise provided in the applicable Subscription Order or Documentation, the Subscription Billing Model should apply to the Purchased Services and their Usage limits for the duration of the Agreement.
Customer can make a request for different combinations of Usage limits and Billing Models, but ERP.net reserves the right to prepare a personal offer that may better meet the needs of the Customer.
9.2. Agreement Term
This Agreement commences on the date on which a Subscription Order is submitted by the Customer and shall continue in effect for an indefinite period of time until it is terminated in accordance with the provisions thereof. This Agreement is valid for the Subscription Orders which this Agreement accompanies.
9.3. Pricing and Payment
Customer will provide ERP.net with valid and updated bank card information, or with a valid purchase order or alternative document reasonably acceptable to ERP.net. If Customer provides bank card (credit card, debit card, virtual card etc.) information to ERP.net, Customer authorizes ERP.net to charge such bank card for all Purchased Services listed in the Subscription Order for the duration of this Agreement.
Such charges shall be made either monthly or in accordance with any different Billing Period stated in Subscription Order. Depending on the Billing Models chosen, such charges will be made:
- In case of Subscription Billing Model – on the 1st of the month for the advance use for next Billing Period;
- In case of Usage Billing Models – on the 1st of the month for the use generated in the previous Billing Period;
- In case of Combined billing model – on the 1st of the month for the advance and used quantities;
Regardless of the start date of the Agreement, the Customer’s card shall be charged or the Customer shall be invoiced on the 1st day of the month. All Services used prior to that day shall be included in the first charge or invoice, together with the Fees for the next month. If the Subscription Order specifies that payment will be by a method other than a bank card, ERP.net will invoice Customer in advance and otherwise in accordance with the relevant Subscription Order. Unless otherwise stated in the Subscription Order, invoiced fees are due net 15 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to ERP.net and notifying ERP.net of any changes to such information.
Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by ERP.net regarding future functionality or features.
Except as otherwise specified in a Subscription Order, the Agreement Term will automatically renew for additional periods equal to the expiring Agreement Term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant Agreement Term. Except as expressly provided in the applicable SubscriptionOrder, renewal of promotional or one-time prices will be at ERP.net’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which Purchased Services volume or Agreement Term length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.
If there is no Contract End Date specified in the applicable Subscription Order, the Agreement shall renew automatically on the 1st of every month.
9.5. Price Changes
9.5.1. Change in Pricing Lists
ERP.net may unilaterally change its pricing lists at any time. In such case, the prices under this Agreement shall change accordingly from the next Billing Period, provided that ERP.net has notified the Customer of such changes and the Agreement has remained in force.
9.5.2. Expiry of promotional prices
Except as expressly provided in the applicable Subscription Order, promotional or one-time prices will revert back to ERP.net’s standard list prices at the start of the next Billing Period.
9.5.3. Change in Purchased Services
The Customer may request an increase or decrease in the Purchased Services at any time by placing a new Subscription Order. In such case, the change in Services shall take effect from the start date of the new Subscription Order. If the Customer has removed or decreased any pre-paid Services, ERP.net shall retain the applicable pre-paid fees. If the Customer has increased his pre-paid Services, the price increase for the remainder of the then-current Billing Period will be added to the Customer’s invoice or bank charge for the next Billing Period. If the Services were not pre-paid, they will be charged accordingly at the end of the applicable Billing Period.
9.5.4. Clerical errors
ERP.net reserves the right to make any corrections to prices quoted due to clerical errors or errors of omission.
9.6. No Refunds
All amounts are non-refundable, non-cancellable and non-creditable. You agree that we may bill your credit card or other payment method for renewals, additional users, overages to set limits or scopes of use, expenses, and unpaid fees, as applicable.
9.7. Overdue Charges
If any invoiced amount is not received by ERP.net by the due date, then without limiting ERP.net’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) ERP.net may condition future renewals and Subscription Orders on payment terms, shorter than those specified in this section.
9.8. Suspension of Service and Acceleration
If any charge owing by Customer under this or any other Agreement for Services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized ERP.net to charge to Customer’s bank card), ERP.net may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such Agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for Customers paying by credit card or direct debit whose payment has been declined, ERP.net will give Customer at least 10 days prior notice that its account is overdue before suspending services to Customer.
9.8.1. Payment Disputes
ERP.net will not exercise its rights in the sections above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
Customer will pay all Fees specified in Subscription Orders. Except as otherwise specified herein or in an Subscription Order, (i) Fees are based on Purchased Services and the chosen Billing Models, and (ii) payment obligations are non-cancellable and Fees paid are non-refundable.
Customer will pay the Fees applicable to the Purchased Services and the Billing Models (“License Fees”) and any other Fees, including but not limited to Fees relating to currency conversion, bank charges, transfer charges and any related payment transaction charges (“Transaction Fees”), and any Fees relating to your purchase or use of any services such as App, Marketplace purchases, or Third-Party Services (“Additional Fees”).
License Fees are paid based on the applicable Billing Models and will be billed in as stated in Section 9.3 – Pricing and Payment. Transaction Fees and Additional Fees will be charged from time to time at ERP.net’s discretion. You will be charged at the beginning of each Billing Period for all outstanding Fees that have not previously been charged. Fees will appear on an invoice, which will be sent to the Customer and Administrator.
If you make any purchases through an authorized partner or reseller of ERP.net (“Reseller”), instead of paying ERP.net, you will pay the applicable amounts to the Reseller, as agreed between you and the Reseller. We may suspend or terminate your rights to use Cloud Services if we do not receive the corresponding payment from the Reseller.
Your order details (e.g., the Cloud Services you are entitled to use, the number of Users, the Billing Period, etc.) will be as stated in the Subscription Order placed with us by the Reseller on your behalf, and Reseller is responsible for the accuracy of any such Subscription Order as communicated to us.
If you are entitled to a refund under this Agreement, then unless we otherwise specify, we will refund any applicable Fees to the Reseller and the Reseller will be solely responsible for refunding the appropriate amounts to you.
Resellers are not authorized to modify this Agreement or make any promises or commitments on our behalf, and we are not bound by any obligations to you other than as set forth.
The amount paid or payable by the Reseller to us for your use of the applicable Cloud Services under this Agreement will be deemed the amount actually paid or payable by you to us under this Agreement for purposes of calculating the liability cap.
9.11. No contingencies on other products of future functionality
You acknowledge that the Cloud Services and Additional Services referenced in a Subscription Order are being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other services (and for clarity, any purchases of Cloud Services and Additional Services are separate and not contingent on each other, even if listed on the same Subscription Order). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Cloud Services beyond the duration of this Agreement), or dependent on any oral or written public comments we make regarding future functionality or features.
Fees and other charges imposed under a Subscription Order will not include taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”), all of which will be for Customer’s account. Customer is responsible for all taxes, other than ERP.net’s income and payroll taxes. Customer must provide to ERP.net any direct pay permits or valid tax-exempt certificates prior to signing a Subscription Order. If ERP.net has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, ERP.net will invoice Customer and they will pay that amount unless Customer provides ERP.net with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, ERP.net is solely responsible for taxes assessable against it based on its income, property and employees.
10.1. Withholding Taxes
You will pay all fees net of any applicable withholding taxes. You and we will work together to avoid any withholding tax if exemptions, or a reduced treaty withholding rate, are available. If we qualify for a tax exemption, or a reduced treaty withholding rate, we will provide you with reasonable documentary proof. You will provide us reasonable evidence that you have paid the relevant authority for the sum withheld or deducted.
11. Termination and Cancellations
11.1.1. Termination for Cause
Either party may terminate this Agreement (including all related Subscription Orders) if the other party (a) fails to cure any material breach of this Agreement within thirty (30) days after 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).
If a Customer terminates this Agreement in accordance with this Section, ERP.net will refund the Customer any prepaid fees covering the remainder of the then-current Billing Period after the effective date of termination. If ERP.net terminates this Agreement in accordance with this Section, ERP.net will retain any prepaid fees under the Subscription Billing Model and Customer will pay any unpaid fees covering past usage under the Usage Billing Model.
11.1.2. Termination for Convenience
This Agreement will terminate:
(i) Upon receipt of a written notice by the Customer to ERP.net that the Customer wishes to terminate the Agreement, at any time and for any reason; (ii) Upon the ‘Contract End Date’ in the applicable Subscription Order, if such is specified therein.
Upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Billing Period (for example, fees covering past usage under the Usage Billing Model or additional fees for an increase in Services), any such fees that are outstanding will become immediately due and payable.
11.2. Consequence of termination
Upon any expiration or termination of this Agreement, you must cease using all Cloud Services and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after the termination of this Agreement, so you should make sure to export Your Data using the functionality of the Cloud Services while the Agreement is in force. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.
The following provisions will survive any termination or expiration of these Terms: Sections 4.2. (Responsibilities), 4.3 (Security), 5.3 (Responsibility for Users), 6.3 (Third-Party Developers), 7 (Use and restriction of the platform), 8 (Privacy and information), 9.5 (No refunds), 9.6 (Overdue Charges),9.8 (Fees), 12 (Liability and indemnities), 14 (Governing Law and Jurisdiction).
12. Liability and Indemnities
12.1.1. Mutual Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement.
12.1.2. Our Warranties
ERP.net warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the Cloud Services (but we are not responsible for harmful materials submitted by you or Users).
ERP.net warrants that it will provide the Cloud Service in substantial conformance with the Documentation and with the degree of skill and care reasonably expected from a skilled and experienced global supplier of services substantially similar to the nature and complexity of the Cloud Service.
12.1.3. Warranty Remedy
We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Warranty. If we determine corrections to be impracticable, either party may terminate this Agreement. In this case, you will receive a refund of any fees you have pre-paid for use of the Cloud Services for the remainder of the applicable Billing Period. The Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment or (iii) to No-Charge Services. Our sole liability, and your sole and exclusive remedy, for any breach of the Warranty are set forth in this Section.
12.1.4. Warranty disclaimer
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6.1 (SYSTEM AVAILABILITY), ALL CLOUD SERVICES AND ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE CLOUD SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT USE OF THE CLOUD SERVICES NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD-PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
12.2.1. Limitation of Liability
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS.
12.2.2 Exclusion of Consequential and Related Damages
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
12.2.3. IP Indemnification
We will defend you against any claim brought against you by a third party alleging that the Cloud Services, when used as authorized under these Agreement, infringe any third-party patent, copyright or trademark, or misappropriates any third-party trade secret enforceable in any jurisdiction that is a signatory to the Berne Convention (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by us (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defence and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defence, and settlement (if applicable) of the Claim. If your use of the Cloud Services is (or in your opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right for your continued use of the Cloud Services in accordance with this Agreement; (ii) substitute a substantially functionally similar Cloud Services; or (iii) terminate your right to continue using the Cloud Services and refund any prepaid amounts for the remainder of the Billing Period.
Our indemnification obligations above do not apply: (1) if the total aggregate fees we receive with respect to your Purchased Services in the twelve (12) month period immediately preceding the Claim is less than US$ 50,000; (2) if the Cloud Service is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (3) if the Cloud Service is used in combination with any product, software, service or equipment not made by ERP.net, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Cloud Services; (5) to any Claim arising as a result of Your Data or any third-party deliverables or components contained with the Cloud Services or (6) if you settle or make any admissions with respect to a Claim without our prior written consent.
THIS SECTION (IP INDEMNIFICATION) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY CLOUD SERVICES OR OTHER ITEMS WE PROVIDE UNDER THESE TERMS.
All notices and communication will be in writing and given when delivered to the address set forth in a Subscription Orde Form. Notices by ERP.net or Customer relating to the operation or support of the Cloud Service and those under Sections 6.2 (Support) and submitting new Subscription Order may be in the form of an electronic notice to Customer’s Administrator/s identified in the Subscription Order.
All notices and communication will be addressed to the e-mails set forth in the last Subscription Order. ERP.net will communicate with Customer through their Administrator or Reseller, which one is applicable. Where necessary, the Parties may explicitly designate another person (Administrator for Customer) to temporarily or permanently serve as a Contact person.
This correspondence shall be deemed as binding on the Parties. The Parties shall consider all correspondence / statements sent by e-mail as written. Papers, documents and e-mails received by the Parties before 6:00 pm Eastern European time on the respective business day shall be deemed to have been received on the same day. Papers, documents and e-mails received by the parties after 06:00 pm on the respective business day are considered to be received on the next business day.
14. Governing Law and Jurisdiction
14.1. Informal Resolution
In the event of any controversy or claim arising out of or relating to this Agreement, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under this Agreement. All negotiations pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
14.2. Governing Law and Jurisdiction
This Agreement will be governed by and construed in accordance with the applicable laws of the England and Wales. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to this Agreement must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of the courts in England and Wales, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in London, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
14.3. Injunctive Relief/Enforcement
Notwithstanding the provisions of the above Sections, nothing in this Agreement will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
14.4. Exclusion of UN Convention
The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement.
As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement.
15.2. No Waiver
A waiver of any breach of the Agreement is not deemed a waiver of any other breach.
15.3. Electronic Signature
Signatures in any electronic form (including email or dedicated signature solutions) are deemed original signatures.
Without ERP.net’s prior written consent, Customer may not assign or transfer the Agreement (or any of its rights or obligations) to any party. ERP.net may assign the Agreement to any of its Affiliates.
ERP.net may subcontract parts of the Cloud Service or Consulting Services to third parties. ERP.net is responsible for breaches of the Agreement caused by its subcontractors.
15.6. Relationship of the Parties
The parties are independent contractors, and no partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties is created by the Agreement.
15.7. Force Majeure
Any delay in performance (other than for the payment of amounts due) caused by conditions beyond the reasonable control of the performing party is not a breach of the Agreement. The time for performance will be extended for a period equal to the duration of the conditions preventing performance.
15.8. Entire Agreement
The Agreement constitutes the complete and exclusive statement of the agreement between ERP.net and Customer in connection with the parties’ business relationship related to the subject matter of the Agreement. All previous representations, discussions, and writings (including any confidentiality agreements) are merged in and superseded by the Agreement and the parties disclaim any reliance on them. The Agreement may be modified solely in writing signed by both parties.