1. APPLICATION AND VALIDITY
1.1 Software Services. These terms and conditions (“Software Services Terms”) regulate the use of FOSS software services, all as described in the software service Documentation (available at www.iqx.net/devicemanagement, www.iqx.net/food-safety, www.iqx.net/supplier-quality and www.fossanalytics.com/en/products/fosscalibrator-andfosscalibrator-pro (the “Software Services”), and together with the specific Order and any documents referred to herein they constitute an agreement (the “Agreement”) between the invoicing FOSS company (“FOSS”) and the customer submitting the order (“Customer”, “You” or “Your”) when the order has been confirmed by FOSS (“Order”).
1.2 By using the Software Services, You are agreeing to the terms and conditions of the Agreement. If you are using the Software Services on behalf of an organization, you are agreeing to the Agreement on behalf of that organization and representing that you have the authority to bind that organization to the Agreement. In that case, "You" and "Your" will refer to that organization. FOSS and You are each a “Party” to the Agreement.
1.3 Definitions. In addition to the definitions defined above, the following definitions apply to the Software Services Terms: “Customer Data” has the meaning set out in clause 13.2. “Documentation” means the service descriptions, user guides and policies relevant for the Software Services, as updated from time to time. This is provided through a combination of embedded user support tools in the Software Services and supplementary documents (where necessary) accessible via www.iqx.net, www.fossanalytics.com or such other web address notified by FOSS from time to time. “Platform” means the IT platform provided by FOSS as part of the Software Services, including (i) the FOSS IQXTM SaaS platform and (ii) FossCalibratorTM platform, as applicable.
1.4 Separation of terms. These Software Services Terms do not apply to the sale or licensing of other FOSS products and services, which is regulated in the FOSS Global Product Terms and Conditions (available at Legal (www.fossanalytics.com).
1.5 Interpretation in case of inconsistency. In the event of any conflict or inconsistency between the provisions of the Software Services Terms, the Order, and any other documents or agreements referenced herein, the following order of precedence shall apply: (i) the Order, (ii) the Software Services Terms, (iii) any other document or agreement referenced herein. The provisions of the document with the highest priority shall prevail and govern.
2. USE RIGHTS TO SOFTWARE SERVICES
2.1 License. Subject to the Agreement and payment of applicable fees, FOSS grants You a non-exclusive, revocable license during the relevant subscription term to use the Software Services in accordance with the Software Service Documentation, as amended from time to time (“Software Services License”).
2.2 License limitations. You may not use the Software Services in excess of the use authorisations and quantities set out in the relevant Order. Use authorisation may limit the use of the Software Services to a number of users, physical sites, instruments or other metrics. In case You use the Software Services in excess of the purchased use authorisations, FOSS may, without prejudice to its other rights and remedies, claim payment for the additional use at FOSS’ current list prices plus an additional 20 per cent. FOSS may charge the full annual license fee for each license fee period the excess use took place irrespective that the excess use did not take place during the entire annual license fee period.
2.3 The Software Services may solely be used for Your own operations of Your own instruments and for Your own internal business purposes.
You shall not:
(i) use the Platform or Software Services in violation of any applicable law or regulation, including any applicable export control laws and/or sanctions;
(ii) copy, use, distribute, republish, download, display, transmit, sell, rent, lease, host, or sub-license the Platform or Software Services, save as permitted under this Agreement;
(iii) use the Platform or Software Services in the operation of a service bureau, outsourcing or time-sharing service;
(iv) attempt to interfere with or disrupt the systems, software, network or equipment underlying or connected to the Platform or the Software Services;
(v) modify, create derivative works of, adapt, translate, reverse engineer, decompile, or otherwise attempt to discover the source code or other technology forming part of the Platform or the Software Services;
(vi) remove any brand names, trademarks or logos of FOSS shown on the Software Services or in output content;
(vii) use the Software Services other than as intended and set out in the Documentation; or
(vi) circumvent or disclose the security of the Platform or the Services or any host, network, or account related thereto.
3. PLATFORM ACCESS
3.1 Platform access. FOSS always recommends using the latest version of browsers. The Software Services is designed to run on browsers as defined in the Documentation. Mobile access/tablets can be used but not all functions will be accessible on all types of units or could have a different user interface depending on the unit. FOSS refers to the help section on the Platform. If problems or issues arise which can be immediately mitigated by using a browser recommended by FOSS, this is to be considered a corrective action and should be performed before contacting FOSS.
4. LIMITATIONS ON USE AND SUSPENSION
4.1 License Fees. Your use of the Software Services is subject to Your timely and effective payment of all fees.
4.2 Suspension. FOSS may, at its discretion, disable the Customer’s use and access to the Platform and Software Services immediately (i) if any fees are not paid on time and remains unpaid 30 (thirty) days after being due, (ii) if FOSS believes that You, or a third party, uses the Platform and/or Software Services in breach of the Agreement, (iii) if FOSS believes that You have permitted non-authorized users to use the Platform, (iv) if FOSS believes that You use the Platform in breach of clause 2.3, or (v) if FOSS believe that You, or a third party, uses the Platform or the Software Services in a manner that may impose a security risk or cause harm to FOSS or any third party.
5. FOSS’ RIGHT TO UPDATE THE SOFTWARE SERVICES
5.1 Service description. A current description of the Software Services and key functionality can be found in the Documentation.
5.2 Amendments. FOSS shall be entitled to amend, remove, and change the functionality and/or technical solution of the Software Services and/or the Platform without Your prior consent.
5.3 Changes to the Software Services. FOSS shall notify You one (1) month in advance of planned, significant changes to the Software Services and changes that may affect Your use of the Software Services in a material manner. In case of critical and/or time sensitive patches and fixes, FOSS may perform the changes without prior notification, but shall notify You as soon as possible after the change.
5.4 FOSS may provide You with information and notices about the Software Services electronically, including via email, on the Platform, or through the FOSS website. Notice is given as of the date it is made available by FOSS.
6. PRICE AND PAYMENT
6.1 License Fees. You shall pay a yearly license fee in advance (“Yearly License Fee”) for the Software Services as stated in FOSS’ Order or, if not stated in the Order, in the upon delivery current price list. The prices and licenses are exclusive of sales tax (VAT) and any other taxes and levies.
6.2 Payment terms. You shall pay all applicable fees for the Software Services according to the payment terms stated in the Order.
6.3 Implementation. Unless otherwise specifically indicated by FOSS in the Order, prices quoted are exclusive of, and You agree to pay for, any time and transportation in connection with FOSS assisting with implementation of the Software Services, other support or training.
6.4 Adjustment of Yearly License Fee. The Yearly License Fee may be adjusted annually by FOSS with effect from the next annual license period.
7. CUSTOMER RESPONSIBILITIES
7.1 Output content. FOSS provides Software Services that supports Your business. FOSS does not provide any advisory services or legal advisory services and is not responsible for Your compliance with laws applicable to your business. You acknowledge and agree that You are responsible for verifying that the Software Services and any information, report, output, data, or functionality provided or generated by FOSS, the Platform, or the Software Services (the “Output”) fulfils your business needs and regulatory obligations. Any use of the Output by You shall be at Your own risk and no business decisions should be made based on the results without Your prior validation thereof.
7.2 You are solely responsible for your conduct, the content of Your Customer Data and your communications with others while using the Services. You shall obtain all rights and permissions related to the Customer Data needed to comply with the Agreement and to avoid infringement or violation of any third party rights.
7.3 You acknowledge that FOSS has no obligation to monitor any information on the Software Services and that FOSS is not responsible for the accuracy, completeness, appropriateness, safety or legality of Your data or any other information or content you may be able to access using the Software Services.
7.4 Customer connectivity and network. You are fully responsible for always ensuring minimum required connectivity to the internet (as defined in the Documentation) and any other relevant internal network(s) relevant for Your use of the Software Services. You also take full responsibility for Your own networks in terms of information security.
7.5 Installation. You are solely responsible for the installation of the Software Services, unless You have specifically agreed and paid for installation support. The fact that You have not installed or in any other way did not use the Software Services, will not entitle you to claim any refund, discount or similar.
7.6 Use of Your account. Except caused by FOSS’ breach of the Agreement, You are responsible for all activity occurring under Your user accounts and their compliance with the terms and conditions of the Agreement.
8. INFORMATION SECURITY
8.1 Information Security. Being a highly digitized company, FOSS recognizes the importance of ensuring that all data, including commercial and personal data, is well-protected at all times from security and privacy threats that can potentially cause harm to individuals, customers, partner organizations and/or third parties. FOSS will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of the Customer Data as described at www.iqx.net/security-statement.
8.2 User Responsibility. Customers are responsible for maintaining the confidentiality and security of their own login credentials and any other authentication information used to access FOSS’ web applications. Customers must also report any suspected or realized security incidents, including unauthorized access to data, which indicates potential vulnerabilities in FOSS’ web applications.
9. USE OF SUBCONTRACTORS
9.1 FOSS subcontractors. FOSS may freely use subcontractors, including outsourcing partners, and remains responsible for services provided by such subcontractors as if it was provided directly by FOSS on its own.
9.2 Cloud based services. The Software Services are made available through the use of cloud services. In case of any interruptions or failures in the Software Services that are caused by such cloud providers, FOSS is excused from meeting its obligations towards You under the Agreement. Further, FOSS’ liability towards You for any such interruptions or failures cannot exceed the relevant standardized cloud provider's liability towards FOSS.
10. WARRANTIES AND FOSS' OBLIGATIONS
10.1 Warranties. FOSS warrants that i) it has the right to enter into the Agreement and to grant to the Customer a license or sublicence to use the Software Services as contemplated by the Agreement; ii) the Software Services are to the best of FOSS’ knowledge free from any third-party interests, viruses and other malicious code and iii) the Software Services are to the best of FOSS’ knowledge not infringing any intellectual property rights.
10.2 Customer warrants that it has the authority and right to enter into the Agreement and to observe and perform its respective obligations contained in the Agreement.
10.3 Functionality. FOSS undertakes that during the subscription term the Software Services will be performed substantially in accordance with the Documentation and with reasonable skill and care. FOSS does not undertake that Your use of the Software Services will be uninterrupted or error-free. Upon Your written notice, if the Software Services do not conform with the foregoing, FOSS will, at its option, (i) correct any such non-conformance, (ii) replace the non-conforming Software Services with services of substantially similar functionality, or, (ii) if FOSS is not able to correct or replace, terminate the Agreement and provide a pro-rata refund of the fee with respect to the non-conforming Software Services covering the period after the termination. The foregoing states Your sole and exclusive remedy and FOSS’ entire liability for any non-conformance, defects, or faults in the Software Services.
10.4 Warranty disclaimer. Except for the expressed warranties and undertakings set forth herein, the Software Services are provided “asis” with all faults and defects, and FOSS disclaims all warranties, conditions, promises or representations, whether expressed or implied, including warranties, conditions, or other terms of merchantability, fitness for any particular purpose, or noninfringement of intellectual property rights.
11.1 FOSS indemnity. FOSS will defend You, at its own expense, against claims that Your use of the Software Services in accordance with the Agreement infringes any third party intellectual property rights, and shall indemnify You for any amounts awarded against You in judgment or settlement of such claims, provided that (i) You give prompt notice to FOSS, (ii) You do not make any admission, or otherwise attempt to compromise or settle the claim and cooperates with FOSS in the defense and settlement of the claim, and (iii) FOSS is given sole authority to defend or settle the claims.
11.2 In the defence or settlement of a claim, FOSS may, i) obtain the rights to continue the use of the Software Services; ii) modify the Software Services to avoid the infringement; or iii) replace the Software Services with a functionally equivalent and non-infringing service. If such remedies are, in FOSS opinion, not commercial reasonable, FOSS may instead terminate the Software Services without any additional liability FOSS GLOBAL LEGAL Version 1 Page 3 of 4 – 1-6-2023 or obligation and repay a proportionate amount of the already paid license fee covering the period after termination.
11.3 You must notify FOSS in writing no later than five (5) days after You have become aware of a claim or a potential third-party claim as set out in clause 11.1 above. You must, at Your own cost, provide FOSS with the assistance, information and authority, which in the reasonable opinion of FOSS will be necessary to perform FOSS’ obligations under this clause, including defending the claim.
12. LIMITATION OF LIABILITY
12.1 Limitation of liability. FOSS shall not be liable under any circumstances for loss of profits, loss of data, or any indirect, consequential, incidental, special, or punitive damages even if advised of the possibility of such damages and irrespective of the basis for such claim, including those based on breach of warranty, breach of contract, negligence, tort, or any other legal, equitable or statutory claim, cause of action or legal theory.
12.2 Liability cap. FOSS’ total aggregate liability, including for proportionate reduction, arising out of or in connection with the Agreement shall be limited to the license fee paid by You under the Agreement during the preceding twelve (12) months (the “Liability Cap”). The Liability Cap shall not apply in the event of intentional misconduct, intellectual property indemnification or personal injury (including death).
12.3 Notwithstanding the above, FOSS shall have no liability for:
a) any claim based on the combination of the Software Services with services, hardware, or software not provided by FOSS;
b) any use of the Software Services not in accordance with the Documentation and the Agreement;
c) lack of or reduced functionality due to third party events that FOSS is not responsible for; or
d) modification of the Software Services by any person other than FOSS.
13. INTELLECTUAL PROPERTY RIGHTS AND RIGHTS TO DATA
13.1 Intellectual property rights. FOSS and/or its licensors own all intellectual property rights in the Software Services, the Platform, the Documentation, and any deliverable, together with any modifications, developments or derivatives.
13.2 Customer data. You shall own all rights in and to all data inputted by You or your authorised users (“Customer Data”) into the software provided by the Software Services. You shall have the sole responsibility and liability for the legality, reliability, integrity, accuracy and quality of the Customer Data.
13.3 FOSS shall take reasonable and industry compliant measures to ensure that Customer Data is kept safe and is backed up on a daily basis, however FOSS shall not be liable for any loss of data.
13.4 FOSS data. All data and intellectual property provided by FOSS to You under the Agreement remains FOSS’ exclusive property.
13.5 FOSS’ use of Customer Data. In order for FOSS to improve, test, deliver and optimize the Software Services and develop new services, You permit FOSS or a FOSS authorized representative to (i) get online access to the FOSS provided systems and the Customer Data and data regarding Your use of the Software Services contained herein, and (ii) to use such data in an anonymised and consolidated form.
13.6 Feedback. You may at your option provide FOSS with any feedback, suggestion, recommendation, or comment regarding FOSS’ business, services, products, or technology, including the Software Services (“Feedback”). You acknowledge and agree that FOSS may retain and freely use, incorporate or otherwise exploit such Feedback without restriction or obligation to compensate or attribute You.
14. DATA PROTECTION (GDPR)
15. COMPLIANCE WITH LAWS
15.1 Applicable laws. Each party shall comply with all mandatory applicable laws, rules, and regulations in fulfilling its obligations under the Agreement.
15.2 Increase in fees. In the event of any changes in laws, rules, regulations, industry codes, regulatory policies, or government authorities’ practise, decisions, or guidelines that impact FOSS’ performance or cost of providing the Software Services, FOSS may, at its sole discretion, require an adjustment to the fees to reasonably account for such impacts. 1
5.3 Customer indemnity. You will defend and hold FOSS and its affiliates, employees, officers, directors, agents, successors and assigns, harmless at your own expense, against any and all third party liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) Your Data; (ii) Your violation of any third party rights (including third party intellectual property rights or privacy rights); and (iii) Your use of the Software Services in any way contrary to the Agreement.
15.4 Export control and sanctions laws. Export Control Laws and Sanctions govern Your use of the Software Services, Platform, deliverables, and Documentation, including technical data. You shall not access or use or allow the access or use of the Software Services, Platform, deliverables, or Documentation in a manner that violates any Export Control Laws and Sanctions, including, directly or indirectly, exporting, reexporting, or releasing any Software Service, Platform, deliverable, or Documentation to any jurisdiction or country to which, or any legal party to whom, the export, reexport, or release is prohibited by applicable Export Control Laws or Sanctions. For the purpose of this clause, “Export Control Laws” means all export control laws and regulations of United Nations, the United States, the European Union and/or its Member States, the United Kingdom and any other relevant jurisdiction, and “Sanctions” means economic, trade or financial sanctions laid down, administered or enforced by under the laws of the United Nations, the United States, the European Union and/or its Member States, the United Kingdom or any other relevant jurisdiction.
16. TERM AND TERMINATION
16.1 Term and Renewal. The Agreement shall begin on the effective date as specified in the Order and shall continue as specified in Your Order (the “Initial Term”), automatically renewing thereafter (unless otherwise agreed to by the parties in the applicable Order) for successive periods of twelve months each (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless earlier terminated by the parties in accordance with the Agreement.
16.2 Termination for convenience. Either Party may terminate the autorenewal of the Agreement and/or the autorenewal of any Order upon written notice to the other Party, which notice is given at least ninety (90) days prior to the end of the applicable then-current Initial Term or Renewal Term, as the case may be. If notice of termination is not provided within such time frame, the subscriptions to the Software Services under the then-current Order(s) will auto-renew under the existing terms and conditions of the Agreement.
16.3 Termination for cause. Either Party may terminate the Agreement (and any Software Service) with immediate effect if the other Party fails to remedy any material breach of the Agreement within thirty (30) days of receiving written notice of such breach. For the avoidance of doubt, overdue payment is considered a material breach.
16.4 Effects of termination. Upon the effective date of termination of the Software Services License for whatever reason, You shall immediately cease use of the Platform and return all documents or other materials which have been received, except materials that in accordance with statutory requirements must be maintained for archiving purposes. Fees will not be refunded during the termination notice period or for any unused Software Services during the Initial Term or any Renewal Term, except if You terminate the Agreement due to FOSS’ material breach, in which case FOSS will refund a pro-rata amount of the fee covering the period after the date of termination. FOSS GLOBAL LEGAL Version 1 Page 4 of 4 – 1-6-2023
16.5 You may from the effective date of termination request Your data returned in an electronic format. Such format to be subject to FOSS’ decision.
16.6 Following a period of thirty (30) days from the date of termination or expiry, FOSS will delete the Customer Data received from You except i) materials that in accordance with statutory requirements must be maintained for archiving purposes or ii) where FOSS maintains the right to use the documents and data specifically for the purposes set out in clause 13.5.
17.1 You may not assign any of your rights under the Agreement, and any such attempt is void. FOSS may assign its rights and obligations to any of its affiliates or subsidiaries, or to any successor in interest of any business or assets associated with the Software Services.
18.1 Confidentiality. Both parties shall keep information received from the other party, including the content of Orders, confidential and shall not disclose it to any third party. Both parties shall take reasonable steps to prevent unauthorised disclosure or use of confidential information. The obligations of confidentiality and non-use shall not apply to information i) which at the time of disclosure hereunder is, or later becomes, part of the public domain; ii) which the recipient can show to have been in possession of at the time of disclosure, or has been made available from a third party with the right to disclose it; or iii) which the recipient is required by law to disclose.
19. FORCE MAJEURE
19.1 Force majeure. FOSS shall not be liable for delays or failure in performance of any of its obligations resulting from causes beyond its reasonable control, such as natural disasters, fire, strikes, embargos, acts of government, war, epidemic, pandemic, denial-of-service or cyber security attacks, interruption or failure of the internet or any utility service, failures in third party hosting services, or other similar causes.
20. FOSS’ SUSTAINABILITY AND QUALITY STATEMENT
20.1 FOSS policies. FOSS is committed to the preservation of our reputation and integrity through compliance with applicable laws and regulations for the intended use of Software Services and ethical standards in each of the markets in which we operate. To underline the importance of this commitment, FOSS has formulated a number of policies, which FOSS maintains and continuously complies with. For further information on our policies please visit www.fossanalytics.com. The policies may be subject to updates.
20.2 FOSS’ ethics and compliance efforts are supplemented by an independently verified whistle-blower system. Employees, business partners, as well as third parties have the opportunity to voice concerns or report irregular behaviour at any time on our external website at https://foss.whistleblowernetwork.net.
20.3 Acting responsibly and with integrity has been our approach to doing business since the inception of our company in 1956 by Nils Foss. FOSS is an active participant of the UN Global Compact and a member of SEDEX (Supplier Ethical Data Exchange), the world’s largest platform for sharing responsible sourcing data on supply chains. Please see more at www.fossanalytics.com/en/about-foss/sustainability.
20.4 A guiding principle for FOSS is that all products and services shall be of the highest standards of quality and therefore FOSS is certified to both ISO9001 standard (Quality Management) and ISO27001 standard (Information Security Management). These and other certificates can be found at www.fossanalytics.com/en/support/certificates.
21. THIRD PARTY SOFTWARE
21.1 The Software Services may contain components made available to the public as open source by a third party ("Open Source Software"). The Open Source Software used in the Software Services is available upon request together with the terms that apply to the use of the specific component.
22. ENTIRE AGREEMENT, MODIFICATIONS AND WAIVER
22.1 Entire agreement. The Agreement constitutes the entire agreement between the parties and supersedes any prior understandings, agreements, or representations by or between the Parties, written or oral, to the extent they relate in any way to the subject matter hereof.
22.2 Modifications. FOSS may revise these Software Services Terms from time to time and the most current version will always be posted on our website. We will notify you of any material change (for example via email to the e-mail address associated with your account or by a notification when you sign in or by some other method). By continuing to access or use the Software Services after revisions become effective, you are agreeing to be bound by the revised Software Services Terms. If you do not agree to the new Software Services Terms, simply don't use the Software Services after the change is effective, in which case the change will not apply to you.
22.3 Survival. If any provision of these Software Services Terms shall be deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired and will continue to be valid and enforceable to the fullest extent permitted by law. Failure to strictly enforce any of these Software Services Terms shall not be considered a waiver of any of FOSS’ rights hereunder.
23. GOVERNING LAW AND JURISDICTION
23.1 Governing law. The Agreement, and any non-contractual obligations arising out of or in connection with it, shall be governed by the substantive laws of Denmark, without regard to any conflicts of law rules.
23.2 Jurisdiction. Each Party irrevocably agrees that the courts of Denmark shall have exclusive jurisdiction to settle any dispute or claim, that cannot be settled by mutual agreement, arising out of or in connection with the Agreement. This includes any dispute relating to (i) the existence, validity or termination of the Agreement or (ii) any non-contractual obligation arising out of or in connection with the Agreement.
23.3 Notices. All Your notices to FOSS relating to the Agreement shall be sent to Your account responsible designated on the Order and with a copy to email@example.com. All FOSS’ notices to You relating to the Agreement shall me sent to the email address designated on the Order or through the Platform.