SERVICES AGREEMENT
THIS SERVICES AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF THE SERVICES. CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN. BY ENTERING INTO AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR OTHERWISE USING THE SERVICES IN WHOLE OR IN PART, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS SERVICES AGREEMENT. IF YOU DISAGREE, YOU DO NOT HAVE THE RIGHT TO USE THE SERVICES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “YOU” SHALL REFER TO SUCH ENTITY. THIS AGREEMENT SHALL ENTER INTO FORCE ON THE ORDER FORM START DATE OF THE FIRST ORDER FORM REFERRING TO THIS AGREEMENT OR FROM THE DATE OF SIGNING OF SUCH ORDER FORM BY THE CUSTOMER, IF SUCH ORDER FORM WAS CREATED BEFORE DECEMBER 2, 2024 (“EFFECTIVE DATE”).
This Services Agreement (the “Agreement”) is entered into by and between GMDH Inc., (“GMDH”, “We”, “we”, “Us”, “us”, “Our” or “our”), a Delaware corporation, with a file number 4523959, and address 16192 Coastal HWY, Lewes, Sussex, DE 19958, and the company or other legal entity and its affiliates represented by the person executing this Agreement. (the “Customer”, “You”, “you”, “Your” or “your”).
1. DEFINITIONS
“Account” means any instances created by Customer or GMDH for access to and use of the Services by Customer and/or its authorized Users.
"Affiliate" means in respect of a party, any entity that from time to time, directly or indirectly, Controls, is Controlled by, or is under common Control with that party and any other entity agreed in writing by the parties as being an Affiliate in respect of either party; “Agreement” means this Services Agreement, the Data Processing Agreement (which is available at the link https://legal.streamlineplan.com/DPA) and any other policies related to the use of the Services.
“Fees” means all fees payable by you for the Services as set forth in an Order Form.
“Corrections” means any corrections, changes, or workarounds we may provide you for any defects, errors, or malfunctions in our Software or systems.“Confidential Information” means information as set forth under Section 12.2.
“Consulting Services” means customized services that include troubleshooting and problem diagnosis to meet your organization's needs and may be delivered via Web-based sessions.
"Control" means the ownership of, or power to vote in respect of, at least 50% of the voting stock, shares, or interests of an entity;
"Customer Data" means all data, works, and materials uploaded to or stored by the Customer on GMDH’s platforms (including any website or mobile application) for use in the provision of the Services;
"Customer Personal Data" means any personal data that is processed by GMDH on behalf of the Customer in relation to this Agreement, but excluding personal data with respect to which GMDH is a data controller;
"Data Protection Laws" means all applicable laws relating to the processing of Customer Personal Data including, while it is in force and applicable to Customer Personal Data, including the General Data Protection Regulation (Regulation (EU) 2016/679) and where applicable United States data protection laws, including in the case of California residents the California Consumer Privacy Act 2018 (AB 375);
“Documentation” means our online user guides, documentation, and help and training materials, including videos.
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including without limitation, strikes, lock-outs, or other industrial disputes (whether involving the workforce of GMDH or any other party), extended failure of a utility service or failure of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the laws, regulations, rules or directions of the government, acts of God, disasters, explosions, fires, floods, storms, riots, terrorist attacks, war, riot, pandemics, epidemics and imposition of quarantines and other governmental restrictions relating to same.
“Joint GMDH and Partner Implementation” means any and all services provided by Partner and by GMDH to you together in parts as described in the Implementation Agreement including the provision of the (access to the) Software for your use and access and/or Standard Support and Upgrade Services and/or Training Services and/or Consulting Services.
“Implementation Agreement” means an additional document that sets out the agreed Services or Joint GMDH and Partner Implementation, project specific activities, associated deliverables, work effort, resources, additional Customer obligations and such other terms as are agreed, including any addenda and supplements thereto.
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Partner" means an unaffiliated third-party contractor engaged by GMDH to perform Partner Services that GMDH has the right to conduct under this Agreement.
“Partner Implementation” means any and all services provided separately by Partner to you as described in the separate agreement (“Partner Implementation Agreement”).
“Partner Services” means the services are provided directly by the Partner to the Customer.
“Order Form” means a written document specifying the Subscription and Services you have ordered, the Fees owed thereunder, and such other terms as are agreed, including any addenda and supplements thereto.
“Services” means any and all services and Subscriptions provided to you as described in the applicable Order Form.
“Software” means the GMDH Streamline software used by GMDH in delivering the Services.
“Standard Support and Upgrade Services” means the provision of core support and upgrades to Users.
“Subscription” means the subscriptions you purchase under an Order Form for your use of and access to the Services in accordance with the Agreement.
"Subscription Term" means the period of Subscription specified in the Order Form. If such period is not specified in the Order Form, it shall be twelve (12) months from the Order Form Start Date.
“Training Services” means customized services providing the skills and knowledge regarding the Software, its functionality, operations, and usage and may be delivered via Web-based sessions.
“Use of Services" means the number of Users of the Software and/or the annual revenues of the inventory items managed in the Software.
“User” means the person under the responsibility of the Customer authorized to use the Services through the Customer’s Account and/or administrator identified through a unique login.
2. SCOPE OF SERVICES; GENERAL CONDITIONS
2.1. Access to Software. Subject to your compliance with the terms and conditions of this Agreement, you are granted a non-exclusive, non-transferable, non-sublicensable, limited, revocable right to use and access the Services during the Subscription Term. We may update the Software from time to time, including adding or removing functions.
2.2. Delivery of Software. Following the execution of an Order Form upon the receipt of Fees, we will send you electronically login details or/and the license key or/and any other information required for you to access and use the Software. We will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week except during (i) planned downtime for changes, upgrades, and maintenance to the Services and (ii) unavailability due to Force Majeure Events. We reserve the right to monitor and periodically audit your use of the Services to ensure compliance with this Agreement. In the event we discover that your use is not compliant with this Agreement, we reserve the right to terminate or suspend your use of the Services in addition to any other remedies available to us in law.
2.3. Standard Support and Upgrades. We will provide our Standard Support and Upgrades to you at no additional charge during the Subscription Term. We are constantly improving our Software and to that end, we will:
a) Make Software upgrades and notify you in writing about major upgrades that provide significant enhancements.
b) Make release notes available and identify any significant impact upgrades may have on existing customizations.
c) Answer questions about how to use supplied functionality.
d) Provide you with Corrections on a timely basis, given the nature and scope of the defect.
e) Give tips on using the Software and successfully integrating your applications.
f) Make available to you the latest revision of the system Documentation (where applicable).
g) Provide you with support for the most recent release of our Software.
h) Our Standard Support covers support on standard functionality and Software defects. It does not include the provision of customization advice or consulting services. Neither does it cover problems caused by your system administration, such as your accidental or inadvertent destruction of your own data, or a Force Majeure Event.
i) A support representative will be reviewing your request and will send you a personal response within 24 hours but usually much quicker than that. This response time will depend on the complexity of your query.
2.4. Consulting Services and Training Services. We will provide additional Consulting Services and/or Training Services if such services are included in your Order Form or Implementation Agreement.
2.5. Customer Use Obligations and Restrictions. In addition to complying with the other terms, conditions, and restrictions set forth below in this Agreement, You agree not to (a) use the Services in contravention of this Agreement and the Documentation; (b) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit ormake the Services available to any third party, other than authorized Users in furtherance of your internal business purposes as expressly permitted by this Agreement; (c) use the Services to process data on behalf of any third party other than the Users; (d) modify, adapt, or hack the Services and/or Software or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (e) falsely imply any sponsorship or association with GMDH, (f) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (h) use the Services to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (i) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (j) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of the Software or any other software comprising the Services; (k) use the Services to knowingly transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (l) use or launch any automated system that accesses the Services (i.e., bot) in a manner that sends more request messages to the Services server in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; or (m) attempt to use, or use the Services in violation of this Agreement.
2.6. Responsibility for Users. You are responsible for ensuring compliance with the provisions of this Agreement by the Users and for any and all activities that occur under your Account, as well as for all Customer Data. Without limiting the foregoing, you are solely responsible for ensuring that the use of the Services to store and transmit Customer Data is compliant with all applicable laws and regulations. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for your purposes. You agree and acknowledge that each User will be identified by a unique username and password (“Login”) and that a User Login may only be used by one (1) individual. User subscriptions are for designated individuals only and a Login cannot be shared or used by more than one individual but may be reassigned to new individuals replacing former individuals who no longer require ongoing use of the Services. You and the Users are responsible for maintaining the confidentiality of all Login information for your Account.
2.7. Suspension or Termination of Customer’s Access. In addition to any other rights as set forth in this Agreement or available to us under law, we reserve the right, in our reasonable discretion, to temporarily suspend or terminate your access to and use of the Services if we suspect or detect any Malicious Software connected to your Account or use of the Services by you or any of the Users.
3. EFFECT OF AN ORDER FORM
3.1. This Agreement sets out the framework for Customer or any of Customer’s Affiliates to enter into individual Order Forms under which you will receive Services.
3.2. The terms and conditions of this Agreement:
a) form an agreement between the Customer and GMDH and/or Partner on matters such as the nature and management of the overall relationship between GMDH and the Customer and/or the Customer’s Affiliates and/or Partner in respect of the provision of Services; and
b) will be incorporated into individual Order Forms in the manner set out in Section 3.4.
3.3. The Order Form signed by the Customer constitutes the Customer's acceptance to purchase the Services. Each Order Form that has been agreed and executed by both the Customer and/or an Affiliate of the Customer and GMDH and/or Partner shall constitute a separate contract for the supply of the Services between GMDH and the Customer or the Affiliate of the Customer/Partner (as applicable).
3.4. Each Order Form is governed by:
a) the terms and conditions of this Agreement, which shall be incorporated in each Order Form by reference. For the avoidance of doubt, where an Affiliate of the Customer enters into an Order Form, all references to “Customer” in this Agreement shall, for the purposes of this Section, be deemed to be references to the relevant Affiliate of the Customer that has executed the relevant Order Form;
b) the terms and conditions set out in the relevant Order Form, in the case of any discrepancies between the terms and conditions of this Agreement and the Order Form the terms and conditions of the Order Form shall prevail.
3.5. This Agreement shall govern all transactions between GMDH and the Customer and/or the Customer’s Affiliates with respect to the Services. Any terms or conditions that may be contained in any purchase order or other form (other than an agreed Order Form) used by the Customer or any Affiliate of the Customer shall be without force or effect unless expressly agreed otherwise by the parties in writing. For the avoidance of doubt, this Agreement and any Order Forms shall not affect any other contracts, such as software license agreements or consultancy agreements, between GMDH and the Customer or any Affiliates of the Customer unless expressly agreed in writing.
4. FEES AND PAYMENT
4.1. Fees. You agree to pay all Fees for the Services. At least thirty (30) days prior to the end of the current Subscription Term, GMDH/Partner will send the Customer an offer to renew the Subscription and Services by sending a new Order Form, on the terms set out in such Order Form. You may increase your Use of Services by requesting a new Order Form. Unless otherwise specified in the applicable Order Form, we will charge you for additional Users at the price specified in the applicable Order Form, prorated for the remainder of the then-current Subscription Term.
4.2. Invoicing and Payment. Upon execution of the Order Form and/or Implementation Agreement, GMDH shall issue you an invoice for the Fees. We primarily accept wire transfers tothe account specified in the invoice and may also accept other forms of payment including ACH and payments via Stripe.
4.3. Payment Due Dates. Unless otherwise stated, invoiced Fees are paid in advance. All payments are due in full without deduction or set-off within fourteen (14) days of the date of our invoice (unless otherwise specified in the Order Form). You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.
4.4. Taxes. Each party shall incur its local taxes, levy, and customs as defined in the local tax laws or regulations. If the Customer is or may be required under any law or regulation of any governmental entity or authority, domestic or foreign, to withhold or deduct any portion of any payment due to GMDH pursuant to this Agreement and GMDH is unable to reclaim or recover that deduction through the exercise of reasonable efforts, then the sum payable to GMDH will be increased by the amount necessary to yield to GMDH an amount equal to the sum it would have received had no withholdings or deductions been made.
5. USE OF PARTNERS
5.1. GMDH Partners. GMDH may arrange that all or some of the Services covered by this Agreement are provided to the Customer by a Partner (Partner Services). By signing an Implementation Agreement with a Partner as one of the signatories or Partner Implementation Agreement, Customer acknowledges, consent, and agrees to the provision of services by a Partner as well as all applicable rights, terms and conditions as set forth in this Agreement and the applicable Implementation Agreement. The Customer further agrees that, following the execution of the Implementation Agreement , any such Partner shall be considered a third-party beneficiary of this Agreement and as such, the Partner shall be entitled to rely on, and avail itself of, the provisions of this Agreement, wherever the context so admits and only to the extent necessary for the purposes of providing the Partner Services.
5.2. Applicable terms to Partner Services. Customer’s use of the Joint GMDH and Partner Implementation shall be subject to the terms, obligations, and conditions of this Agreement and the Implementation Agreement entered into between GMDH, the Customer and the Partner; provided, however, that if Partner Services are conditioned upon Customer’s execution of a separate agreement with the applicable Partner (Partner Implementation Agreement) which would provide for certain rights and obligations between Customer and the Partner, the terms of the Partner Implementation Agreement will apply to Customer’s use.
5.3. Conditions of Partner Services. By signing the Implementation Agreement/Partner Implementation Agreement, the Partner shall be bound by all obligations undertaken by GMDH under this Agreement, particularly those relating to Confidentiality (Section 12) and Data Protection (Section 13).5.4. Partner’s Fees. Costs and expenses associated with the contracting of Partner Services shall be paid partly by the Customer to the Partner in accordance with the Implementation Agreement, or fully directly by the Customer to the Partner in accordance with the Partner Implementation Agreement.
6. CUSTOMER DATA
6.1. License to Customer Data. The Customer hereby grants to GMDH and subject to the terms and conditions of this Agreement and any and all Order Forms, a non-exclusive, non-transferable license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of GMDH's obligations and the exercise of GMDH's rights under this Agreement, and for no other purpose (“Customer Data License”). The Customer also grants to us the right to sub-license these rights to our service providers, on an as-needed basis subject to any express restrictions elsewhere in this Agreement.
6.2. Partner’s License to Customer Data. By executing an Implementation Agreement, Customer acknowledges, consents, and agrees that such Partner, as a third-party beneficiary of this Agreement, shall be entitled to rely on, and avail itself of, the rights and obligations granted to GMDH under the Customer Data License, but only to the extent reasonably required for the performance of Partner's obligations and the exercise its rights under this Agreement and the applicable Implementation Agreement.
6.3. Ownership of Customer Data. The Customer shall own all rights, title, and interest in and to all of the Customer Data and shall at all times have sole responsibility for the legality, reliability, integrity, accuracy, and quality of the Customer Data. The Customer warrants to GMDH that the Customer Data when used by GMDH in accordance with this Agreement will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute, or regulation, in any jurisdiction and under any applicable law.
6.4. Lost or Damaged Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for us to use reasonable commercial endeavors to restore the lost or damaged Customer Data from the latest backup of such Customer Data where such back-ups are made by us.
6.5. Customer’s Responsibility for Customer Data. GMDH shall not be responsible for any loss, destruction, alteration, or disclosure of Customer Data caused by the Customer and the Customer's Affiliates or any third party (except those third parties sub-contracted by us to perform services related to Customer Data, in which case our liability shall be subject to the limitations and exclusions set out in this Agreement and any Order Forms, including those set out in this Section 6).
7. PROPRIETARY RIGHTS.
7.1. GMDH Proprietary Rights. The Customer acknowledges and agrees that GMDH and/or its licensors (including the GMDH’s Affiliates) own all Intellectual Property Rights in the Services and the Software. Except as expressly stated herein, neither this Agreement nor any Order Form grants the Customer any rights to, or in, any Intellectual Property Rights in respect of the Services, the Software, or any related documentation. The Customer agrees that it shall not and shall not attempt to copy, duplicate, modify, create derivative works from, or distribute all or any portion of the Services or the Software
7.2. No Transfer of Proprietary Rights to Partner. Notwithstanding anything to the contrary in this Agreement or elsewhere, this Agreement or applicable Implementation Agreement does not grant or transfer to any Partner any of GMDH’s Intellectual Property Rights in the Services or Software.
7.3. Right to Use Customer Feedback. GMDH, its Affiliates, and their licensors shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any enhancement requests provided by the Customer so long as the Customer is not identified in any way as the source of such feedback.
8. WARRANTIES AND DISCLAIMERS
8.1. GMDH shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by GMDH or by third-party providers, or because of other causes beyond GMDH's reasonable control, but GMDH shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. GMDH shall take commercially reasonable and appropriate legal, organizational, and technical measures that comply with applicable law to protect against unlawful and unauthorized access, disclosure, alteration, destruction, or processing of Confidential Information and/or Customer Data. GMDH shall maintain commercially reasonable operating standards and security procedures to secure Confidential Information and Customer Data. Upon any discovery of any misuse, compromise, loss, or unauthorized disclosure or acquisition of, or access to, Confidential Information and Customer Data (an "Information Security Breach"), GMDH will use commercially reasonable efforts to investigate, remediate, and mitigate the effects of the Information Security Breach. HOWEVER, GMDH DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-, BUG-, DEFECT-FREE OR FREE FROM SECURITY VULNERABILITIES; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED "AS IS" AND THE COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.GMDH WILL NOT PROVIDE ANY LEGAL, FINANCIAL, ACCOUNTANCY OR TAXATION ADVICE UNDER THIS AGREEMENT OR IN RELATION TO THE SERVICES; AND, EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, GMDH DOES NOT WARRANT OR REPRESENT THAT THE SERVICES OR THE USE OF THE SERVICES BY THE CUSTOMER WILL NOT GIVE RISE TO ANY LEGAL LIABILITY ON THE PART OF THE CUSTOMER OR ANY OTHER PERSON.
8.2. Each party represents that it is duly organized, has the power and authority to enter into this
Agreement, and has validly entered into this Agreement.
9. LIABILITY. LIMITATION OF LIABILITY
9.1. GMDH’s Liability. GMDH is responsible for the availability of the Software. At the same time, GMDH is responsible for the quality of the Services it provides.
9.2. 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 YOU UNDER THIS AGREEMENT, INCLUDING ANY RENEWAL, PREDECESSOR OR SUCCESSOR AGREEMENTS, FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWENTY-FOUR (24) MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 4 (FEES AND PAYMENT).
9.3. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES, OR INDIRECT, SPECIAL, INCIDENTAL, COVER, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS 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.
9.4. Liability for Partner Services. The Customer acknowledges and agrees that in the case of providing the Partner Services, the Partner is solely responsible for any content, acts, or omissions of the Partner related to the Partner Services, including, without limitation, any threatening, defamatory, obscene, abusive or unlawful behavior, or any violation of the rights of others, including, without limitation, the rights of privacy and intellectual property, nor can GMDH fix errors or defects in Partner Services, and GMDH's sole obligation with respect to these cases is to inform the Partner of any errors, defects, deficiencies or other matters regarding Partner Services of which GMDH is made aware by the Customer, and to request and pursue remediation of the errors, defects or deficiencies in a commercially reasonable manner by the Partner to the extent GMDH reasonably determines remediation to be available pursuant to the terms ofGMDH's agreement with the Partner. The Partner shall be solely responsible and liable directly to the Customer for any such content, acts, or omissions. GMDH shall be liable only as provided under Section 9.
9.5. Liability in case of a Force Majeure Event. The parties suffering from a Force Majeure Event shall not be liable for the inability to perform their obligations because of the Force Majeure Event. The term of fulfilling said obligations shall extend for the duration of the circumstances of insuperable force.
9.6. Late Payment. If the Customer fails to properly pay any amount due to GMDH under this Agreement, GMDH reserves the right, at its sole discretion and without limiting its other remedies, to take one or more of the following actions: (i) terminate or suspend the Customer’s license to access the Software and the provision of the Services; and/or (ii) assess a late interest fee at the rate of five (5) % of the outstanding balance per month or the maximum rate permitted by law, whichever is lower. At the same time, Customer shall be entitled to a five-day grace period before penalties for late payment commence.
10. TERM AND TERMINATION
10.1. Term of Agreement. This Agreement will remain in effect from the Effective Date until the end date of the Subscription Term. (the “Term”).
10.2. Termination for Cause. A party may terminate this Agreement for the cause: (a) upon thirty (30) days written notice to the other party of a material breach (including breach of the conditions described in Section 4) if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a bankruptcy petition or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
10.3. Termination without Cause. The parties may also choose to terminate this Agreement at any time by signing a termination note, setting forth termination terms agreed by the parties. Notwithstanding the foregoing, the parties acknowledge that this Agreement may not be terminated without Cause prior to the end of the current Subscription Term. You may choose to cancel the Subscription/Services early at your convenience provided that, we will not provide any refunds of prepaid fees or unused Fees, and you will promptly pay all unpaid Fees due through the end of your Subscription Term.
10.4. Surviving Provisions. The sections titled "Fees and Payment", "Warranties and Disclaimers", “Proprietary Rights” "Mutual Limitation of Liability", "Term and Termination", “Confidentiality” "General Provisions" and “Governing Law and Dispute Resolution” will survive any termination or expiration of this Agreement.
11. MANNER OF GIVING NOTICE
11.1. All notices and other communications required by this Services Agreement must be in writing, and must be made via email, personal service or United States mail, postage prepaid. All notices to us shall be addressed to our office at 16192 Coastal HWY, Lewes, Sussex, DE 19958, or to [email protected]. Billing-related notices to you shall be addressed to the relevant billing contact or email address designated by you.
12. CONFIDENTIALITY
12.1 Confidentiality and Data Security. Based on this Agreement and the applicable Order Form, each party and its Affiliates, directors, employees, partners, and subcontractors (“Receiving Party”) may have access to Confidential Information of the other party including its Affiliates, directors, employees, partners, and subcontractors (“Disclosing Party”) which is confidential and required to be protected as such and never to be disclosed to individuals or corporate persons without the Disclosing Party’s prior written permission. Therefore, the Receiving Party hereby undertakes to keep confidential all data or Confidential Information it may acquire from the Disclosing Party and never to disclose any part of them except to the individual who’s entitled to deliver the required services to you based on this Agreement or otherwise as required under this Agreement.
12.2. Confidential Information. Confidential Information means any and all information or data, in whatever form or storage medium, whether tangible or intangible, and whether disclosed directly or indirectly before or after this Agreement by or on behalf of the Disclosing Party to the Receiving Party in writing, orally, through visual means, or by the Receiving Party’s evaluation, observation, analysis, inspection or other studies of such information, data or knowledge, which is now or at any time after the date of this Agreement, owned or controlled by the Disclosing Party. Confidential Information shall include Customer Data, trade secrets, discoveries, know-how, designs, specifications, drawings, present or future products or services (including the Services) and markets, inventions, prototypes, algorithms, software of any kind or nature, including, but not limited to the Software, object or machine codes, source codes (whether revealed in the Services or disclosed by other means), computer models and applications, developments, processes, formulae, technology, engineering, architectures, hardware configuration information, diagrams, data, computer programs, business activities and operations, customer lists, reports, studies and other technical and business information and any other information which, by its nature, would reasonably be considered to be of a confidential nature either intrinsically or due to the context and circumstances in which it was disclosed, including, for the avoidance of doubt, information concerning the parties’ customers, which is of a confidential nature.
12.3. Excluded Information. Excluded information includes a) any information lawfully known to, or in the possession of, Receiving Party prior to being disclosed; b) is or becomes publicly known, otherwise than pursuant to a breach of this Agreement by Receiving Party c) is required to be disclosed by Receiving Party by law or court order; provided that in these circumstances, Receiving Party shall, if possible, give the Disclosing Party the opportunity to take whatever steps it deems necessary to protect its interests in this regard, and provided further that Receiving Party will disclose only that portion of the information that it is legally required to disclose and will use its best endeavors to protect the confidentiality of such information to the widest extent possible in the circumstances.
12.4. Partner’s Confidentiality duties and obligations. By executing an Implementation Agreement/Partner Implementation Agreement, Customer acknowledges, consents, and agrees that such Partner, as a third-party beneficiary of this Agreement, shall be entitled to rely on and avail itself of, the rights and obligations granted under this Section, but only to the extent reasonably required for the performance of Partner's obligations and the exercise its rights under this Agreement and the applicable Implementation Agreement/Partner Implementation Agreement.
13. DATA PROTECTION
13.1. Each party shall comply with the Data Protection Laws with respect to the processing of the
Customer's Personal Data.
13.2. Whenever You and/or the Users interact with the Services, GMDH automatically receives and records information on our server logs from the browser or device, which may include IP address, “cookie” information, the type of browser and/or device being used to access the Services. “Cookies” are identifiers we transfer to the browser or device of the Users that allows GMDH to recognize the User and their browser or device along with how the Services are being utilized. When we collect this information, we only use this data in an aggregated form, and not in a manner that would identify the Users personally. For example, this aggregate data can tell us how often users use a particular feature of the Services, and we can use that knowledge to improve the Services.
13.3. We receive and store any information that you knowingly provide to us. For example, through the registration process for the Services and/or through your Account settings, we may collect personal data such as name, email address, phone number, credit card information, and third-party account credentials (for example, log-in credentials for third-party sites that integrate with the Services) of you and the Users. We may also collect financial information of the Customer, only to the extent necessary to provide the Services. We base the processing of the personal data of the Users on our legitimate interest, for the purposes of this Agreement and general lawful purposes under applicable data protection laws, to provide you with the necessary functionality required during your use of the Services. The data we collect from other sources includes identifiers, professional-related information, commercial information, visual information, internet activity information, and inferences about preferences among other information. In addition, we may communicate with you and/or with the Users and send you and/or to the Users product announcements and promotional offers, or contact you (and/or with the Users) about the Services or our services in general. If you do not want to receive communications from us, please indicate this preference by sending an email to [email protected] (or to the other active email provided by us as a result of the execution of this Agreement with the domains @streamlineplan.com or @gmdhsoftware.com) and provide us with the name and email address of each User that no longer wishes to receive these communications.
13.4. We do not sell, rent, or lease Customer Personal Data to any third party. We do not share Customer Personal Data with third parties, except as permitted under this Agreement to provide and support the Services or for marketing purposes (e.g., to send product updates, product announcements, promotional offers or to conduct review collection campaigns, Net Promoter Score (NPS) or for review and feedback collection). We may, however, share aggregated and anonymized information regarding your use of the Services with third parties as described in this Section, to the extent it is necessary for the performance of the Services and our legitimate interest under applicable data protection laws, in developing and improving the Services and providing you with more relevant content and Services offerings. To be clear, we never disclose aggregated and/or anonymized information to a third party in a manner that would identify you or the Users.13.5. The Customer warrants to GMDH that it has the legal right to disclose all Personal Data that it does in fact disclose to GMDH under or in connection with this Agreement.
13.6. GMDH shall only process the Customer Personal Data for the purposes specified in this Agreement and for general lawful purposes.
13.7. GMDH shall only process the Customer's Personal Data during the Term.
13.8. Notwithstanding any other provision of this Agreement, GMDH may process the Customer Personal Data if and to the extent that GMDH is required to do so by applicable law.
13.9. GMDH shall ensure that persons authorized to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
13.10. GMDH and the Customer shall each implement appropriate technical and organizational measures to ensure an appropriate level of security for the Customer's Personal Data.
13.11. GMDH shall, at the Customer's choice and upon the Customer's request, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
13.12. If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to the processing of Personal Data carried out under this Agreement, then the parties shall use their reasonable best efforts promptly to agree with such variations to this Agreement as may be necessary to remedy such non-compliance.
14. FORCE MAJEURE EVENT
14.1. In no event will GMDH be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by a Force Majeure Event. In the event of any failure or delay caused by a Force Majeure Event, GMDH will give prompt written notice to the Customer stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event, provided that if the period of delay or non-performance continues for three months, either party may terminate this Agreement and any affected Order Forms by giving a thirty (30) days written notice to the other party.
15. GENERAL PROVISIONS
15.1. Entire Agreement. This Agreement and each Order Form supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The GMDH has the right to independently modify and/or amend the terms of the SA. You are responsible for checking the link https://legal.streamlineplan.com/services- agreement regularly for such changes. By continuing to access or use the Services you agree to be bound by the revised SA.
15.2. Priority of Order Form. In the event of any inconsistency between this Agreement and an Order Form, the Order Form shall take precedence over this Agreement. Any purchase order, purchasing terms, general terms of business, or other document issued by you is for administrative convenience only and its terms and conditions will not be binding on us.
15.3. Priority of Implementation Agreement. In the event of any inconsistency between this Agreement and an Implementation Agreement, the Implementation Agreement shall prevail over this Agreement.
15.4. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party's prior written consent, not to be unreasonably withheld or delayed. Any purported assignment is void, and as such, the assignee will not acquire any rights from the purported assignment. Notwithstanding the above, GMDH may, however, without such consent, assign or sell its rights under this Agreement (a) in connection with the sale or transfer of all or substantially all of its business to a third party or (b) in the event of a merger or consolidation with a third party. Subject to this paragraph, this Agreement and all of the provisions of this Agreement will be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and permitted assigns.
15.5. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
15.6. Publicity. GMDH may use the Customer’s name and logo performed in customer lists, advertisements and other promotional materials including, press releases, brochures, reports, letters, white papers, case studies and electronic media, such as emails or GMDH’s website, provided that in no event shall any Confidential Information be disclosed in such materials.
15.7. Prevailing Party. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover all costs and reasonable attorney’s Fees.
15.8. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. A waiver of any right under this Agreement or any Order Form is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Failure of a party to enforce its rights does not constitute a waiver of its rights.
15.9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
15.10. Sanctions clause. Neither Party nor any of its directors, officers, employees, shareholders, or other persons having known or assumed major influence on either of them, issubject to a sanction or ban by the laws or regulations or executive decisions of the United Nations, the European Union or any of its member states, or the United States of America. Neither Party nor any subsidiary, director, officer or employee of either Party, or any agent, contractor, Affiliate or other person acting on behalf of either Party (“Related Person”), is currently the subject or the target of included, but not limited to, any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury of the United Kingdom, or other relevant sanctions authority (collectively, “Sanctions”); nor is the Party located, organized or resident in a country or territory that is the subject or target of Sanctions, including, without limitation, Crimea, Cuba, Iran, North Korea, Syria, Russia and Belarus (“Sanctioned Countries”). Each Party shall not directly or indirectly use this Agreement and/or proceeds obtained from the scope of this Agreement, or lend, contribute or otherwise make available any information under this Agreement and/or proceeds to any subsidiary, or any joint venture partner or other person or entity, for the purpose of assisting the activities of or business with any person, or in any country or territory, that at the time of the Agreement, is the subject or target of Sanctions or in any other manner that will result in a violation by any person of applicable Sanctions. Since its inception, each Party has not knowingly engaged in and is not now knowingly engaged in any dealings or transactions with any person that at the time of the dealing or transaction is or was the subject or the target of Sanctions or with any Sanctioned Countries.
16. THE GOVERNING LAW AND DISPUTE RESOLUTION
16.1. Governing Law. This Agreement and any disputes or claims arising out of or in connection
with it or its subject matter or formation (including non-contractual disputes or claims) are
governed by, and shall be construed in accordance with, the laws of the State of Delaware, U.S.A.
16.2. Jurisdiction.
a) The parties irrevocably agree that the courts of Delaware have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims) save that GMDH may bring proceedings for injunctive or interim relief in any alternate jurisdiction at its sole option in the case of breach or anticipated breach by the Customer or any of the Customer's Affiliates of its or their obligations relating to confidentiality and Intellectual Property Rights as set out in this Agreement and any Order Forms.
b) Unless otherwise agreed in the relevant Order Form, each Order Form and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the laws of State of Delaware, U.S.A. Unless otherwise agreed in the relevant Order Form, the parties irrevocably agree that the courts of Delaware have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with any Order Form or its subject matter or formation (including non-contractual disputes or claims).