General Terms and Conditions

Between

SALICO GmbH
  (hereinafter: the “Provider”)

Wurster Str. 321
27580 Bremerhaven
Germany

And

The Person(s) creating an account on Emory Pro using the signup link  https://www.webapp.emory.pro/signup 
 (hereinafter: the “Client”) 

The Provider and the Client hereinafter individually referred to as “Party” and together as
“Parties”.

By using the offerings of Emory Pro, one is considered as having consented and agreed to the terms and conditions, unless otherwise explicitly agreed in writing or as required by law. In each case, the currently applicable and published terms and conditions can be found on the website https://emory.pro/terms-and-conditions/. Any other representations, contrary to or departing from the stated terms and conditions of the contractual partner (“Client”) do not apply. These terms and conditions shall not apply to contractual or other legal relationships between client and third parties, even if those contracts or legal relationships have come into existence because of or through Emory Pro.

 

1. Services

1.1 The Provider agrees to provide Emory Pro(hereinafter referred to as “Platform”) as a SaaS (Software as a Service) for conducting inspections and generating and sharing Inspection reports.
1.2 The Client shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorized person or application may gain access to the Hosted Services by means of the Access Credentials.
1.3 The Provider may, in its sole discretion, make any changes to the Platform that it deems necessary or useful to:
a. Maintain or enhance:
i. the quality or delivery of the Provider’s products or services to its Clients;
ii. the competitive strength of, or market for, the Provider’s products or services; or
iii. such Platform’s cost efficiency or performance.
b. Comply with applicable law.
1.4 The Client must not use the Hosted Services:
a. in any way that is unlawful, illegal, fraudulent, or harmful; or
b. in connection with any unlawful, illegal, fraudulent, or harmful purpose or activity.
1.5 For the avoidance of doubt, the Client has no right to access the software code (including object code, intermediate code, and source code) of the Platform, either during or after the expiry of the Term of this Agreement.
1.6 Generating inspections reports for more than 200 photos will not be allowed. A maximum combined limit of 5 minutes of videos per inspection report is allowed.

2. Term

2.1 This Agreement shall come into force upon its execution and shall continue in force indefinitely subject to termination in accordance with Clause 8 or any other provision of the Agreement.

3. Intellectual Property Rights

3.1 The Provider hereby grants to the Client a non-exclusive license to use the hosted services by means of the User Interface for conducting inspections during the term of this Agreement.
3.2 The license granted by the Provider to the Client under clause 3.1 is subject to the following limitations: 
a. The User Interface may only be used through a supported Web Browser and the Emory Pro Mobile App.
b. The User Interface may only be used by the officers, employees, agents, and subcontractors of the Client.
c. The User Interface may only be used by authorized users. However, the Client may change, add or remove a designated named user in accordance with the user change guidelines defined by Emory Pro.
3.3 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the license granted by the Provider to the Client under Clause 3.1 is subject to the following prohibitions:
a. The Client must not sub-license its right to access and use the Emory Pro Application.
b. The Client must not permit any unauthorized person or application to access or use the Emory Pro Application.
c. The Client must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services.

4. No Assignment of Intellectual Property Rights

4.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Client, or from the Client to the Provider.

5. Client Data

5.1 The Client hereby grants to the Provider a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit, and translate the Client Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement. The Client also grants to the Provider the right to sub-license these rights to its hosting, connectivity, and telecommunications service providers, subject to any express restrictions elsewhere in this Agreement.
5.2 The Provider shall create a backup copy of the Client Data and shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the backup was taken and shall retain and securely store each such copy for a minimum period of 30 days.
5.3 In case of database corruption or instability of the app which requires restoring of a backup copy of the database, the Provider shall use all reasonable endeavors to restore to the Platform the Client Data stored in any backup copy created and stored by the Provider in accordance with Clause 5.2 within 5 business days. The Client acknowledges that this process will overwrite the Client Data stored on the Platform prior to the restoration.

6. Confidentiality Obligations of the Provider

6.1 The Provider must:
a. keep the Client’s Confidential Information strictly confidential;
b. not disclose the Client Confidential Information to any person without the Client’s prior written consent, and then only under conditions of confidentiality approved in writing by the Client;
c. use the same degree of care to protect the confidentiality of the Client Confidential Information as the Provider uses to protect the Provider’s own confidential information of a similar nature, being at least a reasonable degree of care;
d. act in good faith at all times in relation to the Client’s Confidential Information; and 
e. not use any of the Client Confidential Information for any purpose other than for providing software services under this Agreement.
6.2 Notwithstanding Clause 6.1, the Provider may disclose the Client Confidential Information to the Provider’s officers, employees, professional advisers, insurers, agents, and subcontractors who have a need to access the Client Confidential Information for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Client Confidential Information.
6.3 This Clause 6 imposes no obligations upon the Provider with respect to Client Confidential Information that:
a. is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality, or
b. is or becomes publicly known through no act or default of the Provider.

7. Charges

7.1 The Platform is provided to the client free of charge for a period of 30 days. After this period the client’s account will be put in a suspended state for 6 months. During this period the client will have the opportunity to enter into a paid contract with Emory Pro to continue using the Platform. If such a paid contract is not entered into, within 6 months after the free trial has ended, the client’s account will be deleted.

8. Termination

8.1 Either party may terminate this Agreement by giving to the other party at least 20 days’ written (including by email) notice of termination.
8.2 Either party may terminate this Agreement immediately by giving written (including by email) notice of termination to the other party if the other party commits a material breach of this Agreement.
8.3 Subject to applicable law, either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
a. the other party:
i. is dissolved
ii. ceases to conduct all (or substantially all) of its business;
iii. is or becomes unable to pay its debts as they fall due;
iv. is or becomes insolvent or is declared insolvent; or
v. convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
b. an administrator, administrative receiver, liquidator, receiver, trustee, manager, or similar is appointed over any of the assets of the other party; or
c. an order is made for the winding up of the other party

9. Limitation of Liability

9.1 Nothing in this Agreement will:
a. limit or exclude any liability for fraud or fraudulent misrepresentation;
b. limit any liabilities in any way that is not permitted under applicable law; or
c. exclude any liabilities that may not be excluded under applicable law.
9.2 The limitations and exclusions of liability set out in this Clause 9 and elsewhere in this Agreement:
a. are subject to Clause 9.1; and
b. govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence), and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
9.3 The Provider shall not be liable to the Client in respect of any losses arising out of a Force Majeure Event.
9.4 The Provider shall not be liable to the Client in respect of any loss of profits or anticipated savings.
9.5 The Provider shall not be liable to the Client in respect of any loss of revenue or income.
9.6 The Provider shall not be liable to the Client in respect of any loss of business, contracts, or opportunities.
9.7 The Provider shall not be liable to the Client in respect of any loss or corruption of any data, database, or software providing that this Clause 9.7 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 5.2 and Clause 5.3.
9.8 The Provider shall not be liable to the Client in respect of any special, indirect, or consequential loss or damage.

10. Data Protection

10.1 Provider shall comply with the Data Protection Laws with respect to the processing of the Client´s Personal Data.
10.2 The Client warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
10.3 The Provider shall only process the Client Personal Data during the Term and for not more than 30 days following the end of the Term, subject to the other provisions of this Clause 10.
10.4 The Provider shall only process the Client Personal Data on the documented instructions of the Client including with regard to transfers of the Client Personal Data to a third country under the Data Protection Laws, as set out in this Agreement or any other document agreed by the parties in writing.
10.5 The Provider shall promptly inform the Client if, in the opinion of the Provider, an instruction of the Client relating to the processing of the Client’s Personal Data infringes the Data Protection Laws.
10.6 Notwithstanding any other provision of this Agreement, the Provider may process the Client’s Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Client of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
10.7 The Provider shall ensure that persons authorized to process the Client Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
10.8 The Provider and the Client shall each implement appropriate technical and organizational measures to ensure an appropriate level of security for the Client´s Personal Data.
10.9 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organizational measures to assist the Client with the fulfillment of the Client’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
10.10 The Provider must notify the Client of any Personal Data breach affecting the Client’s Personal Data without undue delay and, in any case, not later than 72 hours after the Provider becomes aware of the breach.
10.11 The Provider shall, at the choice of the Client, delete or return all of the Client’s Personal Data to the Client after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires the storage of the relevant Personal Data.
10.12 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 best endeavors promptly to agree on such variations to this Agreement as may be necessary to remedy such non-compliance.
10.13 Salico GmbH, Wurster Str. 321, 27580 Bremerhaven, Germany, E-Mail: [email protected], Website: www.emory.pro is the responsible person in terms of the EU General Data Protection Regulation (GDPR) (German: EU- Datenschutz-Grundverordnung (DSGVO)) and other national data protection laws. It is also the name and address of the Data Protection Officer.

11. Warranties

11.1 The Client warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
11.2 All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

12. Acknowledgements and warranty limitations

12.1 The Client acknowledges that complex software is never wholly free from defects, errors, and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors, and bugs.
12.2 The Client acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
12.3 The Client acknowledges that the Provider will not provide any legal, financial, accountancy, or tax advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Client will not give rise to any legal liability on the part of the Client or any other person.