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eDition SOFTWARE AS A SERVICE AGREEMENT

This  eDition software as a service agreement ("SaaS” or “Agreement") is entered into as of day of entering into agreement (“Effective Date”) by and between Citadela, trgovina in inženiring, d.o.o., Stegne 21, 1000 Ljubljana, Slovenia ("Citadela", “seller” or “company”) and buyer (also referred to herein as “customer”  or “buyer”).

1.         Background.

Citadela is software as a service provider company, designing and developing custom based solutions. Citadela has developed eDition, software as a service solution for development, editing, publishing and e-commerce digital edition. eDition digital publishing technology is solution for design, transfer and publish of prints (newspapers, magazines, product catalogues, brochures, etc..) and other content (blogs, presentations, SMS, MMS, etc.) with the possibility of interactivity of web based content and solutions, on web based or web receiver platforms. eDition enables optimization and web based interactive advertising, marketing, e-commerce on electronic provider technologies or/and through electronic communication technologies, either in connection or in line, characterized by the system that uses or operates in line with content-based services; with data transfer through fix or portable multimedia communication devices or wireless electronic communication technologies, the system enables interactive cooperation by providers of content, editors, publisher and end users (company or end receiver).

This eDition software as a service will be referred to herein as the “Solution.”

The Solution is well represented in the presentations ( see http://www.edition-on.net/ ) that Citadela has prepared that depicts the solution in a web based presentation.

 

2.         Agreement for Services; Terms and conditions

  1. This SAAS, together with the General Terms and Conditions and all applicable Schedules (as defined hereafter), all of which are set forth at http://www.edition-on.net/legal, states the terms and conditions by which Citadela delivers and Customer accepts any or all of the services, licenses or equipment provided by Citadela to Customer (each specific service, license and/or provision of equipment, a “Service”).

 

Therefore, in consideration of the mutual covenants hereinafter set forth, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, hereby covenant and agree as set forth in this Agreement.  Defined terms not otherwise defined in the body of the Agreement will have the definition set forth in Slovenian law and legal practice in Slovenia.

Details of each Service ordered by Customer, including Customer’s requirements for each Service, will be set out in Citadela’ standard ordering document(s) for each specific Service referencing this SaaS (“Orders”).

Completed Orders will be binding only:

  •  when signed by customer on paper with prove or receipt of legally binding document or instrument acknowledge payment or payment guarantee, received by Citadela and acknowledge and accepted in writing by Citadela,
  •  when transmitted on-line to Citadela by Customer with prove or receipt of legally binding document or instrument acknowledge payment or payment guarantee and acknowledged and accepted by Citadela

Customer may order additional types of Service, additional features of Service, capacity or locations for a Service previously ordered through additional Orders. In addition to the terms and conditions set forth in this SaaS and the General Terms and Conditions, specific terms and conditions applicable to each Service ordered by Customer are set out in separate schedule(s) to this SaaS (each such schedule, together with any and all Orders for the Service(s) set forth in the applicable schedule, a “Schedule”).

The Schedule(s) for the Services initially ordered by Customer may be set out in the appendixes to this SaaS and, if are not so set out, are set forth at http://www.edition-on.net/legal , incorporated herein by this reference.

The Schedule(s) for any new Service ordered by Customer subsequent to the execution of this SaaS shall be signed or ordered online by Customer at the time of such and, when signed or ordered on line, shall become an additional appendix to this SaaS. In the absence of any such executed Schedule(s), the provision of the Services shall be subject to the terms of Citadela’ standard Schedules set forth at http://www.edition-on.net/legal , incorporated herein by this reference. Citadela reserves the right to amend General Terms, Conditions and the Schedules and publish changes on http://www.edition-on.net/legal  thirty (30) days prior to getting into force except where otherwise agreed with each specific customer.

  1. Reference herein to the “Agreement” shall mean this SaaS, the General Terms and Conditions, all applicable Schedule and all Orders executed thereto. In the event of a conflict between or among the terms of documents relating to a Service, the following order of priority will govern, except where the specific terms of a document provide otherwise: (1) any applicable Schedule or Orders; (2) this SaaS; and (3) the General Terms and Conditions.

 

Schedule or Order can be used as same term as not specifically divided or otherwise defined.

  1. This SaaS shall be effective upon execution by both Customer and Citadela and shall continue in full force and effect until the termination of the last Schedule in effect. The term for each Service will commence on the date set forth on each applicable Order and shall continue for the term set forth on such Order (“Initial Term”). The term of each Order may be renewed automatically for additional terms as set forth in each such Order (each such period a “Renewal Term”) unless either party notifies the other party in writing of its intent not to renew not less than thirty (30) days prior to the end of the then-current term or does not sign on-line for automatically renewal. For the avoidance of doubt, all fees due under the terminated or expired Order shall continue to be payable by the Customer for the duration of the notice period referred to in the previous sentence. The termination or expiration of any individual Schedule or Order hereunder will not affect Customer’s obligations to accept and pay for all other contracted Services set forth in Schedules or Orders not otherwise terminated or expired.

 

3.         Provision of Services by Citadela.

By its execution or written or on-line acceptance of a Schedule or Order pursuant thereto, Citadela shall provide and support the Services set forth in such Schedule or Order during the term set forth therein.

 

4.         CITADELA Responsibilities.

4.1.       Support Services.  

CITADELA shall provide Customer support services pursuant to Citadel’s then-current standard support procedures. All support services will be provided in English, except in cases, where otherwise agreed. Customer will have the primary responsibility for accurately installing, using and implementing the Solution unless otherwise specified. CITADELA is not responsible for providing support services directly to End Users unless specified or in certain instances where an ASP is in place.  Customer will cooperate with CITADELA in providing support and information as requested by CITADELA from time to time in order to enable CITADELA to provide the support services requested by Customer.   

4.2.      Modifications to Solution. 

CITADELA shall consider reasonable requests from Customer regarding modifications or Error corrections to the Solution.  CITADELA will be the only party authorized to modify, enhance or create derivative works to the Solution.  Modifications, enhancements or any alterations to the Solution by any party other than CITADELA will void any warranty or obligation of CITADELA to provide support or other services relating to the Solution.  Any such services will be provided by CITADELA as CITADELA determines appropriate.

Modifications, enhancements or any alterations to the Solution by Customer or with the prior knowledge of the Customer by a third party, without Citadela written consent shall be deemed as a Customer breach of an agreement and a reason for immediate termination of an agreement.

All Modifications, enhancements or any alterations to the Solution provided according to this agreement are property of Citadela.

 

5.         Responsibilities of Customer

5.1.      Best Interest of CITADELA
Customer shall not engage in any activities, practices or business endeavors that would:
(a) Prevent Citadel’s ability to perform its obligations hereunder;
(b) Adversely impact the reputation of CITADELA or its suppliers or their respective employees or sales organization; or
(c) Constitute a false or misleading representation to a customer, or others regarding CITADELA or the Solution covered by this Agreement. Customer shall not make any representations, warranties or guarantees with respect to the Solution or the specifications, features or capabilities of the Solution or publish any technical description of the Solution, except as expressly set forth in Citadel’s documentation accompanying the Solution or CITADELA’S literature describing the Solution or otherwise approved by CITADELA for public usage or otherwise approved by CITADELA.

5.2.      Errors and Modifications to Solution
Customer shall immediately report to CITADELA any technical or other problems in the Solution discovered by or reported by Customer or end-customer.  Customer shall not make or authorize others to make any alterations or modifications to the Solution or any related documentation except as authorized in writing by CITADELA. 

 

6.         Pricing and Payment. 

Each SaaS obligate the Customer to pay to CITADELA for the Solution fees.  Customer shall pay to CITADELA the fees as set forth in the pricing schedule published on http://www.edition-on.net/legal as updated from time to time for the Solution and any additional documentation or additional services not included in its Solution offering (“Fees”).  All Fees are net amounts to be received by CITADELA, exclusive of all taxes, duties, sales taxes, value added taxes, assessments, and similar taxes and duties, and are not subject to offset or reduction because of any costs, expenses, taxes, duties, assessments, or liabilities incurred by Customer or imposed on CITADELA in the performance of this Agreement.  Notwithstanding the foregoing, CITADELA shall be responsible for the payment of any and all income taxes and income tax withholding of CITADELA.  Customer’s obligation to pay to CITADELA shall not be subject to Customer’s receipt of payment from any End User or third party for the use of Service by customer. These rules are valid if not otherwise prescribed in pricing schedule or order form.

 

7.         Ownership. 

Customer acknowledges CITADELA's claim of ownership to Intellectual Property Rights in and to the Solution shall remain the sole property of CITADELA and/or its Suppliers.  Customer shall ensure that Citadela's Proprietary Rights in any software or equipment which are part of the Solution are fully protected, including without limitation implementing commercially reasonable security protections, and will not take any action adverse to the ownership rights of CITADELA and to the Solution. Customer will promptly notify CITADELA of any and all infringements or attempted infringements of any of the Intellectual Property Rights that may come to Customer's attention, and Customer will assist CITADELA in taking such action against the infringers as CITADELA may reasonably request.  CITADELA will bear the expenses of Customer's assistance to CITADELA, as may be requested by CITADELA, if the infringement or attempted infringement arises by virtue of a third party's act or omission. In case of infringement or attempted infringement of any of the Solution intellectual property rights, Customer is obliged to put on disposal of Citadela free of charge all materials and information, in possession or which are under his control.

 

8.         Trademarks and Patents. 

In usage, implementation, written communications and in advertising, Customer's use of the Marks shall at all times be in accordance with such styles and together with such trademark notices as CITADELA may require.  Customer agrees that this Agreement does not constitute any conveyance of any right, title, or interest in or to any Marks, except for the permissive uses provided herein.  At the request of CITADELA, Customer shall submit to CITADELA any and all materials bearing or including any of the Marks, for prior review and approval by CITADELA if not other explicitly allowed.  Customer agrees not to commit any acts, directly or indirectly, which may contest, dispute, or otherwise impair the rights, title, or interest of CITADELA in or to the Marks.  Customer agrees not to claim or assert any rights, title, or interest in or to the Marks in any way.  The parties agree that all uses of the Marks by Customer shall be in such a manner as to inure at all times to the benefit of CITADELA.  Customer shall not use any language or display any Marks in such a manner as to create the impression that the Marks belong to and are owned by Customer. 
Upon the request of CITADELA, Customer agrees to discontinue the use of

  • any Marks being used by Customer in a manner inconsistent with the guidelines, or
  • any trademark, service mark, or trade name deemed to create a likelihood of confusion with a Mark. 

Customer will take all actions necessary to protect the Marks in all cases in which Customer uses or allows others to use the Solution.  Customer will promptly notify CITADELA of any and all infringements or attempted infringements of any of the Marks that may come to Customer's attention, and Customer will assist CITADELA in taking such action against the infringers as CITADELA may elect in its sole discretion.  CITADELA will bear the expenses of Customer's assistance to CITADELA, as may be requested by CITADELA, if the infringement or attempted infringement arises by virtue of a third party's act or omission. In case of infringement or attempted infringement of any of the patent or trade mark, Customer is obliged to put on disposal of Citadela free of charge all materials and information, in possession or which are under his control.
CITADELA will hold Customer harmless from patent infringements claims filed by claimants who contend that CITADELA’S patent infringes on claimants. Further in such instances CITADELA will bear the costs of any legal fees incurred in an action brought by a claimant against Customer or CITADELA or both.

 

9.         Confidential Information.

  1. In the performance of this Agreement, each party (the “Disclosing Party”) may disclose to the other party (the “Receiving Party”) certain Confidential Information.” For the purposes of this Agreement, the term “Confidential Information” shall mean any and all proprietary and confidential data or information of a party hereto or any of its affiliates which is of tangible or intangible value to that party or affiliate and is not public information or is not generally known or available to that party’s competitors but is known only to that party and its employees,  independent contractors or agents to whom it must be confided in order to apply it to the uses intended. Assuming the foregoing criteria are met, Confidential Information includes, without limitation, information with respect to the operations, customers, customer lists, products, marketing strategy and services of a party and its affiliates and further including, but not limited to:
  • formulas, research and development techniques, processes, computer programs, software, electronic codes, mask works, inventions, innovations, patents, patent applications, discoveries,  improvements, data, know-how, formats, test results, and research projects;
  • information about costs, profits, markets, sales, contracts, lists of actual or potential customers and distributors, and information contained in bids made to actual or potential customers;
  • business, marketing, strategic plans, knowhow, including without limitation the unique manner in which the party conducts its business;
  • forecasts, unpublished financial information, budgets, projections, and customer identities, characteristics and agreements;
  • employee personnel files and  compensation information; and
  • Citadela technology provided, as Citadela  proprietary technology, including the Services, the Software (in source and object forms), software tools, hardware designs, algorithms, user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, trade secrets and any related intellectual property rights throughout the world (whether owned by Citadela or licensed to Citadela from a third party) and also including any derivatives, improvements, enhancements or extensions of Citadela technology conceived, reduced to practice, or developed during the term of this Agreement by either party.

However, customer content or content provided by customer, to be published shall not be considered Confidential Information. “Customer Content” means, but is not limited to,  any files, pages, data, works, information in text, picture, audio, video or others and/or materials on, within, published, displayed, linked or transmitted to, from or through the Network, including, without limitation, trade or service marks, images, photographs, illustrations, graphics, audio clips, video clips, e-mail SMS, MMS or other messages, metatags, domain names (including those registered by Citadela on Customer’s behalf or on Citadela behalf in connection with Citadela provision of Service(s) hereunder) and content as any files, pages, data, works, information in text, picture, audio, video or others and/or materials  as provided by Customer or Customer’s users. “Network” means any network or platform able to enable Customers or customers’ users’ traffic or to carrie content as defined above or for other Services as defined under this Agreement.

Notwithstanding anything contained to the contrary herein, after five (5) years from the termination of this Agreement, only that information which meets the definition of “trade secret” , »state secret«, »personal protected data« or other secrets as defined and protected under applicable law shall be considered “Confidential Information” of a party hereunder.

  1. Each party hereby covenants and agrees that it will treat and regard any and all Confidential Information of the other party as strictly  confidential and wholly owned by the party disclosing such Confidential Information (the “Disclosing Party”) and will not, without the prior written consent of the Disclosing Party, for any reason, in any fashion, either directly or indirectly, use, sell, lend, lease, distribute, license, give, transfer, assign, show, disclose, disseminate, reproduce, copy, misappropriate, reverse engineer, decompile, disassemble, transmit or otherwise communicate or give right to use to any party, except when agreed different or as permitted hereunder or as compelled by “Legal Process” (as defined hereafter), any Confidential information of a Disclosing Party.
  2. Each party acknowledges and agrees that the Disclosing Party’s Confidential Information shall remain the sole and exclusive property of such Disclosing Party or the third party providing such information to the Disclosing Party. The Receiving Party agrees to hold the Confidential Information in strictest confidence and shall use the same degree of care, but no less than a reasonable degree of care, to prevent the disclosure of such Confidential Information to others as it uses to prevent disclosure of its own Confidential Information. Upon request of the Disclosing Party, all copies of the Confidential Information of the Disclosing Party, in any form whatsoever (including but not limited to any reports, memoranda, or other materials prepared by the party receiving such information or at such party’s direction) will be delivered to the Disclosing Party,  or destroyed by Receiving party with exclusive right of Disclosing party to supervise destroyment or evidence of destroyment, provided that the obligations contained in this Agreement on the Receiving Party in regard to the Confidential Information that is/are returned shall continue to be in full force and effect for so long as such information is defined as “Confidential Information” hereunder.
  3. Notwithstanding any contrary term contained herein, the obligations imposed on a party receiving Confidential Information hereunder shall not apply to Confidential Information that:
  • at the time of disclosure is generally available to the public or after the time of disclosure becomes generally available to the public through no act of the Receiving Party;
  • was in the possession of the Receiving Party such information prior to the disclosure and the Receiving Party can provide evidence to that fact;
  • is made available to the Receiving Party by others who did not acquire such information, directly or indirectly, from the Disclosing Party; or
  • that is the subject of any court order, subpoena or other legal process (“Legal Process”) that compels disclosure any of the Confidential Information, provided however, that the Receiving Party shall promptly notify the Disclosing Party of such Legal Process, so that the Disclosing Party may seek a protective order or other appropriate remedy.

 

  1. In the event of a violation or threat of violation by a party, directly or indirectly, of the terms of subsections (a)-(f) of this Section, the Disclosing Party, who would be harmed by such violation, will have the right, and in addition to all other remedies available to it at law, in equity or under this Agreement, to affirmative or negative injunctive relief from a court of competent jurisdiction. Each party acknowledges that a violation of this section would cause irreparable harm and that all other remedies are inadequate, and that punitive damage under this section should be amount of fees paid by customer for two years or fees which should be paid in one year.
  2. In the event that Customer discloses personal data to Citadela (within the meaning of EU Directive 46/95 (“Personal Data”), Customer
  • agrees that Citadela or its affiliate(s) may process such Personal Data consistent with applicable law and regulation, only for the purpose of the SaaS and/or the provision of Services by Citadela to Customer or for purposes connected with the subject matter of the disclosure and/or business relationship between the parties;
  • acknowledge that such processing may include the transfer of such Personal Data to Citadela’ affiliates worldwide and/or its storage in a local or foreign database; and
  • agree that Customer will, to the extent required by applicable law, obtain all necessary consents to such processing from the data subjects concerned.
  • agree when agreed in order that Citadela is Personal data primary user and it allows Customer to use data as agreed with their end customers. Citadela will in that case use data as it decide in accordance with Personal data protection, especially for marketing and telecommunications marketing purposes and end customer relationship management

 

  1. Neither party will publish or use any advertising, sales promotions, press releases or other publicity that uses the name, logo, trademarks or service marks of the other without the prior  approval of the other, provided that either party may list the name, logo, trademarks or service marks of the other as a supplier/customer of the Services provided hereunder.
  2. Customer shall be responsible for all use of Customer’s account(s) and for maintaining the confidentiality of all usernames, passwords and related information. Customer hereby covenants that Customer will not permit the sharing of usernames, passwords and account numbers and related information to anyone who is not Customer’s employee, agent, independent contractor, officer, manager, director or other affiliated entities; provided, however, that if an authorized user leaves Customer’s (employer) or is not working for Customer (employer) or transfers to an unrelated position in Customer’s company or organization, Customer may designate a replacement authorized user without charge. When selecting usernames, Customer shall select unique usernames, which shall not be obscene, defamatory, harassing, offensive or malicious. Citadela reserves the right to inspect all usernames and may reassign and reissue any username(s) that Citadela, in its sole discretion, determines is obscene, defamatory, harassing, offensive or malicious. When selecting passwords, Customer shall select unique, non-obvious passwords with at least five (5) alphanumeric characters.

 

10.       Termination

  1. Citadela may terminate this SaaS or any Schedule then in effect, or both, or, in its sole discretion, suspend the provision of Services hereunder, immediately upon written or electronic notice to Customer if Customer:
  • commits a material breach of this Agreement and fails to cure such breach within five (5) days of receiving written or electronic notice describing such breach;
  • becomes the subject or party of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors;
  • commits a material breach of this Agreement that is incapable of remedy, including, without limitation, breach of Section describing protection of confidential information’s of this SaaS;
  • makes available Content that violates the intellectual property rights of third parties;
  • makes available Content that breach any law in states where content is available, as but not limited to privacy protection, defamation, copyright protected materials without legal allowance to publish or use such materials, state secrets, business secrets, and others
  • repeatedly breaches this Agreement; or
  • as otherwise set forth in a Schedule, order or other documents agreed hereto.

Citadela may also terminate this SaaS or any Schedule then in effect, or both, without cause upon thirty (30) days’ prior written or electronic notice to Customer if otherwise not agreed.

  1. Customer may terminate this SaaS or any Schedule then in effect, or both, 30 days upon written notice to Citadela if Citadela:
  • commits a material breach of this Agreement and fails to cure such breach within ten (10) days of receiving written notice describing such breach;
  • becomes the subject or party of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, and such petition is not dismissed within sixty (150) days of filing;
  • commits a material breach of this Agreement that is incapable of remedy, including, without limitation, breach of Section describing protection of confidential information’s of this SaaS; or
  • as otherwise set forth in a Schedule, order or other documents agreed hereto.

 

  1. If Citadela terminates any Service, including by termination of this SaaS and all then-current Services, before the end of the Initial Term or any Renewal Term thereof, as applicable, pursuant to Sections of this SaaS, or if, pursuant to the terms of any applicable Schedule or Order, Customer terminates any Service before the end of the Initial Term or any Renewal Term thereof, as applicable, except as permitted by SaaS, then Customer agrees to pay a termination fee in accordance with the following provisions:
  • For termination of any Service within the Initial Term for which that Service was ordered, Customer shall pay
  • one hundred percent (100%) of the monthly fees or charges (“MCs”) for the terminated Service payable for the remainder of the Initial Term;
  • any early termination or cancellation charges levied on Citadela by any underlying supplier or vendor of services or equipment relevant to the terminated Services, if any;
  • a pro-rata portion of any installation and other non-recurring charges previously waived by Citadela, if any; and
  • all installation and other non-recurring charges not waived or previously collected by Citadela.
  • For termination of any Service within any Renewal Term, Customer shall pay fifty percent (50%) of the MCs for the terminated Service payable for the remainder of the Renewal Term.
  • The provisions of this Section 10 (c) apply in addition to any specific obligations that Customer may have under the terms of any applicable Schedule.
  • Customer agrees that the loss or injury Citadela will suffer upon Customer’s breach or early termination of this Agreement are difficult or impossible to estimate accurately and that the termination fees provided for in this Section 10 (c) are not a penalty, but are a reasonable estimate of the probable loss Citadela will suffer in the event of Customer’s breach or early termination of this Agreement.
  1. Upon the effective date of termination or expiration of this SaaS and in addition to the applicable terms set forth in any Schedule concurrently terminated or expiring therewith:
  • Citadela shall immediately cease providing the Services to Customer;
  • Customer shall cease using the Services;
  • the licenses or rights granted hereunder shall immediately terminate;
  • all of Customer’s payment obligations through the effective date of termination or expiration shall immediately become due; and
  • Each Receiving Party shall promptly remove and destroy, or at the request of the Disclosing Party return, all Confidential Information in its possession belonging to the Disclosing Party.

 

Upon the effective date of termination or expiration of any Schedule hereto, but not the SaaS as a whole, and in addition to the applicable terms in such Schedule:

  • Citadela shall cease providing the Service set forth on the Schedule to Customer;
  • Customer shall cease using such Service;
  • the licenses and rights set forth in the Schedule shall immediately terminate; and
  • all of Customer’s payment obligations set forth on the Schedule or Order through the effective date of termination or expiration shall immediately become due.

 

  1. Unless otherwise set forth in a notice of termination, the termination of any individual Schedule or Order shall apply only to that Schedule or Order and shall not terminate any other Schedule or Order or the SaaS or the parties’ respective obligations hereunder. The definitions herein and the respective rights and obligations of the parties under this SaaS shall survive any termination or expiration hereof.

 

11.       Warranties

  1. Each party warrants and represents that:
  • it has the legal right to enter into this Agreement and perform its obligations hereunder; and
  • the performance of its obligations hereunder will not violate any applicable Slovenian laws or regulations or cause a breach of any agreements with any third parties.

In addition, Customer warrants and represents that the performance of its obligations and use of the Services by Customer will not violate any applicable laws or the Citadela rules available at http://www.edition-on.net/legal. Each Service Level Warranty is defined in the Schedule or Order for each Service.

  1. Except for the express warranties set forth in each schedule, the services are provided exclusively on an »As is« basis, and customers and enc customer use of the services is at its sole risk. Neither Citadela nor its third party suppliers makes, and Citadela and its third party suppliers hereby disclaim, any and all  other express, implied and statutory warranties, including but not limited to, warranties of merchantability, quality, performance, fitness for a particular purpose, non infringement, title, and any warranties arising from a course of dealing, usage, or trade practice. Citadela does not warrant that the services will be uninterrupted, error – free or completely secure.
  2. In addition to any other remedies available at law or in equity, breach of any of the warranties set forth in this SaaS shall constitute a material breach of this Agreement, subject to immediate termination or suspension of the Service(s) based on sole discretion of Citadela and pursuant to the terms of this Agreement. Notwithstanding any contrary term contained herein, Customer’s sole remedy for Citadela’ breach of any of the warranties set forth in this SaaS is
  • termination of this Agreement pursuant to the terms of this Agreement; and
  • Return of all unused fees and deposits paid to Citadela for any terminated Service(s).

 

12.       Limitation of warranties

Customer is aware that Solution and systems that enable Solution to be used as equipment, networks, or others not in control of Citadela are not absolutely and always working and safe and are to be used and perceived in accordance with the standard technical and other terms and conditions that are normal on the market and it should be understood that are sometimes not working or that there is normal percentage of system fallouts.

From that reason Citadela should not be liable in those cases for, but not limited to and the Customer should understand and agree that:

    • System of content delivery is not absolutely error free and safe
    • Citadela cannot guarantee end user satisfaction when using the Solution
    • Citadela cannot guarantee similar conditions for all Customers, when such conditions are not under Citadela control
    • Citadela is not responsible for Content that Customer or end customer is publishing, distributing, making available to public or sending over the network
    • Citadela is not responsible for loss of content, which is based on wrong usage of Solution, technical inconsistency with standards or requirements or equipment or lack of knowledge or skills of Customer or end Customer
    • Citadela is not responsible for not functioning or wrong functioning  of multimedia communication devices, network or other equipment used to use or implement the Solution,
    • Citadela reserves the right to remove or not publish content that is inappropriate in accordance with the laws from the system
    • Citadela cannot guarantee usage and implementation of the system in case that networks are not functioning, in case that delivery system is not functioning, when that Citadela contractors are not working or are not able or prepared to perform in accordance with the contract, in case that electricity is not available and in other cases that can influence technical or other aspects of usage and implementation of the Services.

     

13.       Limitation of Liability; Force Majeure.

  1. Customer acknowledges and agrees that Customer shall bear sole responsibility for adequate security, protection and backup of its Content or content that is provided by customer or on its behalf, customer technology and equipment. Citadela disclaims all responsibility or liability to Customer for unauthorized access or use, corruption, deletion, destruction or loss of any customer content or content that is provided by customer or on its behalf, customer technology and equipment.
  2. To the maximum extent permitted by applicable law, in no event will Citadela, its subsidiaries, its associated companies, or suppliers be liable to customer for consequential, exemplary, incidental, or indirect damages or costs (including legal fees and expenses) or loss of goodwill, profits or savings, loss of data, downtime, damage to or replacement of equipment and property arising from any claims whether based in warranty, contract, tort (including, without limitation, negligence and strict tort), or otherwise in connection with the supply, use or performance of or inability to use the services, interoperability of customers equipment or applications, performance or nonperformance hereunder or in connection with any claim arising from this agreement even if customer, its subsidiaries, its associated companies, or suppliers have been advised of the possibility of such damages or costs.
  3. Notwithstanding anything contained to the contrary in this agreement, in no event will Citadela, its subsidiaries, associated companies, or suppliers, be liable to customer or any users under this agreement or otherwise, regardless of the form of claim or action, in an amount that exceeds the total fees received by Citadela under this agreement during the twelve (12) months immediately preceding the event that gave rise to such claim.
  4. Neither party shall be liable for and will not be responsible to the other for any delay or failure to perform under this agreement if such delay or failure result from any act cause beyond the reasonable control of the affected party, such as, but not limited to, fire, explosion, third party labor dispute, earthquake, terrorism, casualty or accident, lack or failure of transportation facilities and/or services, lack or failure of telecommunications facilities and/or services including internet services, epidemic, flood, drought, or by reason of war, revolution, civil commotion, blockade or embargo, act of god, any inability to obtain or retain any requisite license, permit or authorization, or by reason of any law, proclamation, regulation, ordinance, demand or requirement of any government, or by reason of any computer viruses or worms, »denial of service« attacks, DNS spoofing attacks and/or other hacking attacks of a similar nature (provided that both parties have taken reasonable steps to prevent such hacking attacks), or by reason of any other cause whatsoever, whether similar or dissimilar to those enumerated, beyond the reasonable control of the affected party;  provided, however, that customer shall not, by reason of such act or cause, be relieved of its obligation to make any required payments that are then due to Citadela or that may become due from customers continued use of the services. Nothwistanding any contrary provision contained herein, failure of either party to perform under this agreement because of the occurrence of an event of force majeure lasting more than forty-five (45) days shall, upon twenty-four (24) hours written or online electronically signed notice in form that is previously agreed or defined in this SaaS to the other party, constitute a grounds for termination of the affected service(s) and applicable schedule(s) only. Upon any such termination, customer shall be entitled to the return of all unused fees paid to Citadela for the terminated service(s).

 

14.       Limitation of Liability. 

IN NO EVENT WILL CITADELA BE LIABLE TO ANY OTHER PARTY FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, OR INDIRECT DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES) OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF OR INABILITY TO USE THE SOLUTION OR ANY SERVICES PROVIDED HEREUNDER, OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS AGREEMENT, EVEN IF SUCH DAMAGES OR COSTS ARE FORESEEABLE IF NOT AGREED IN THIS SaaS, SCHEDULE OR ORDER. 

Citadela aggregate liability under this Agreement shall not exceed the amounts Citadela receives within the twelve months prior to the claim in connection with this Agreement for the Client related to the liability.  The foregoing limitations shall not apply if, and only to the extent that, such contractual limitations cannot under applicable laws limit in such situations the liability of Citadela as service provider.

 

15.       Indemnification.

    1. In the event Customer notifies Citadela of any claim or suit against Customer alleging that a Service infringes any copyright, patent, trademark or trade secrets in the jurisdictions where the Service is provided to Customer, Citadela will have the option
      • to defend or settle, at its own expense, such claim or suit (including by assertion on Customer’s behalf of any license, right to use, or indemnity granted to Citadela);
      • to permit any party obligated to indemnify Citadela in such circumstances to defend or settle, at such party’s own expense, such a claim or suit (including by assertion on Customer’s and Citadela’ behalf of any license, right to use, or indemnity granted to such indemnifying party);
      • to procure a license sufficient to continue offering the Service (including Customer’s use thereof); or
      • to terminate the applicable Service.

In addition to the foregoing, for any such claim or suit, Citadela will also pay all costs and damages that

      • may be payable upon settlement of such claim, provided Citadela has expressly approved such settlement; or
      • may be assessed by a court of competent jurisdiction by final judgment against Customer due to such infringement.

Notwithstanding the foregoing, Citadela’ obligations hereunder are expressly conditioned upon the action not arising from
(a) Customer’s or a third party’s modification of a Service;
(b) Citadela’ adherence to Customer’s instructions;
(c) infringing items of Customer’s or third party’s origin, design or selection, including, without limitation, Customer Content; or
(d) to the extent the action is based upon the operation, combination or use of Service, without Citadela’ prior written consent, with products or services provided by Customer or third parties.

This section states Citadela entire liability and customer’s sole and exclusive remedy for infringement     claims and actions.

    1. Customer agrees to indemnify, defend and hold harmless Citadela its affiliates and their respective directors, officers, employees, agents, successors and assigns (each a “Citadela Indemnitee”) from and against any and all costs, liabilities, losses and expenses, (including, but not limited to, reasonable attorneys' fees) (collectively “Losses”) arising out of any claim, suit, action or proceeding (each an “Action”) brought by a third party against a Citadela Indemnitee, regardless of the form of action, whether in contract, tort, warranty or strict liability, in respect of

(i) copyright infringement or any manner of intellectual property claims, defamation claims, claims of publication of obscene, indecent, offensive, racist, unreasonably violent, threatening, intimidating or harassing material, or claims of infringement of data protection legislation, or infringement of laws of states where content is delivered, based on
(1) the Customer Content or any other content or information transmitted by Customer or its client or end user using the Service;
(2) the use and/or publication of all communications or information transmitted by Customer or its client or end user using the Services; or
(3) Customer’s misuse of the Service; and
(ii) negligence or willful misconduct.

 

16.       Regulatory Matters.

    • Customer acknowledges that each Service provided by Citadela will be subject to laws and regulatory rules in one or more jurisdictions. Citadela undertakes to comply with all applicable laws governing the provision of the Services to Customer, and accordingly, may cancel or suspend the provision of any Service, or portion thereof, upon reasonable notice to Customer if the provision of that Service, or any portion or element thereof, is determined to be a violation of any applicable law or regulation or of any Citadela service or license in any jurisdiction, or is no longer permitted under any of the same. In these circumstances, Citadela will make reasonable efforts to restore the Service, or to provide a functionally equivalent substitute service that is permitted under any applicable law or regulation or under Citadela’ license(s). Any pricing terms for a functionally equivalent substitute service will be separately defined in good faith. If, after such good faith defined prices, the parties are unable to agree on any such substitute pricing terms within forty-five (45) days of Citadela’ written or online notice regarding the substitution, either party may terminate such Service without any liability or penalty upon thirty (30) days prior written notice.
    • If and to the extent that any products, software or technical information provided by Citadela to Customer under this Agreement are or may be subject to any applicable export laws and regulations, Customer agrees that it will not use, distribute, transfer or transmit such products, software or technical information (even if incorporated into other products) except in compliance with such export laws and regulations (or licenses or orders issued pursuant thereto).

     

17.       General.

  1. This SaaS and Conditions and all applicable Schedules, constitute the complete and exclusive statement of all mutual understandings between the parties with respect to the subject matter hereof, superseding all prior or contemporaneous proposals, communications and understandings, oral or written. Each Schedule or Order includes terms that are in addition to, and not in lieu of the SaaS
  2. The parties and their respective personnel are and shall be independent contractors, and neither party by virtue of this Agreement shall have any right, power or authority to act or create any obligation, express or implied, on behalf of the other party.
  3. No waiver of any provision hereof or of any right or remedy hereunder shall be effective unless in writing or online and signed by the party against whom such waiver is sought to be enforced. No delay in exercising, no course of dealing with respect to, or no partial exercise of any right or remedy hereunder shall constitute a waiver of any other right or remedy, or future exercise thereof.
  4. If any provision of this Agreement is determined to be invalid under any applicable statute or rule of law, it is to that extent to be deemed omitted, and the balance of the Agreement shall remain enforceable.
  5. Neither this Agreement, nor Customer’s obligations or rights hereunder, may be transferred or assigned by Customer without Citadela’ prior written consent. Any attempted assignment, transfer or other disposition by Customer in violation of this provision will be null, void and of no force and effect. Citadela may freely assign this Agreement without prior consent of the Customer. This Agreement shall inure to the benefit of and be binding upon the permitted successors, legal representatives and assigns of the parties hereto. There shall be no third party beneficiaries to this Agreement.
  6. All notices shall be in writing and shall be deemed to be delivered when received by certified mail, postage prepaid, return receipt requested, or when sent by facsimile or e-mail confirmed by facsimile. All notices shall be directed to the parties at the respective addresses given above or to such other address as either party may, from time to time, designate by notice to the other party.
  7. Except as provided herein, no amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by both parties.
  8. This Agreement and all obligation obligations of the parties hereunder shall be interpreted, construed, and enforced in accordance with the laws of the Republic of Slovenia; provided, however, that if Slovenia’s conflict or choice of law rules, statutes or constitutional provisions would choose the law of another state, each party waives such rules, statutes or constitutional provisions and agrees that Slovenia substantive, procedural and constitutional law shall nonetheless govern. Any action or proceeding arising from or relating to this Agreement must be brought in a court having jurisdiction in Republic of Slovenia, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding and agrees to waive any defenses to venue and jurisdiction including forum non convenience. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
  9. The parties agree that time is of the essence in the performance of the respective obligations under this Agreement.
  10. This SaaS may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument. The parties may sign this SaaS and deliver the signature pages via facsimile or electronic transmission (with the originals to follow) or otherwise in accordance with this SaaS.