Allgemeine Geschäftsbedingungen Forciot Skid System

GENERAL TERMS FORCIOT SKID SYSTEM                           9.2.2022

 1. SCOPE OF APPLICATION

 These Forciot Oy's General Terms for the Forciot SKID system (“Terms”) shall apply to the use of software as software as a service (“SaaS Services”) by Forciot together with Forciot’s hardware (the skid plates, parts, components or subassemblies sold by Forciot for use as part of the Forciot SKID system, hereafter “Products”) required for the use of the SKID system. Any legal entity or person purchasing the SKID system is hereafter called the “Company”.

Forciot may perform and/or execute activities based on the agreement between the Parties regarding the SKID system (“Agreement”), which may include the establishment, management and exploitation of the SKID system (“Services”). Forciot makes an application available for the Company to utilize the SaaS Services (“Application”).

The right to utilize the SKID system is non-exclusive, non-transferable and it may not be assigned. The Company may not rent, loan, transfer, sublicense, lease or otherwise distribute or operate the SKID system to or for the benefit of any third party.

Deviating or contradictory general terms and conditions of the Company, which are in contradiction with these terms and conditions of contract and licensing, shall not become part of the contract.

2. GENERAL OBLIGATIONS OF THE COMPANY

Company shall provide commercially reasonable information and assistance to Forciot to enable Forciot to deliver SKID system including the Products, the SaaS Services and other Services.

The Company is obliged (i) to undertake at their own expense the acts of cooperation required for the provision of SKID system, and (ii) on request, to provide Forciot without charge with the information and objects required by Forciot for the provision of the Contractual Services; Forciot is entitled to use these for the purposes of the provision of the SKID system.

Company shall be solely responsible for the acts and omissions of the Company’s users responsible for the administration of the Company’s configuration of the SaaS Services (the “Administrator Users”). Forciot shall not be liable for any loss of data or functionality caused directly or indirectly by the Administrator Users.

The Company acknowledges that it is responsible for ensuring that the SKID system including all Products and Services it orders are fit for the purposes for which it intends to use them.

3. PRICES AND PAYMENT

For the use of the SKID system, the following fees must be paid:

• Monthly fees for the use of the SaaS Services and recurrent Services;

• the amount of the other prices and fees that are regulated in the individual contract and/or the order confirmation.

The monthly usage fees shall be billed by Forciot monthly in advance.

The purchase price for the Products shall be the price agreed upon by the parties in writing. If no price has been agreed upon, the purchase price shall be the current list price of Forciot. Prices are subject to changes without prior notice. Price change is applicable to orders confirmed after the effective date of the price change.

Possible discounts agreed in writing will be deducted from the list price valid at the time of the order confirmation.

All prices are net prices and indicated in euros unless otherwise stated in Forciot offer or order confirmation. The prices do not include any special services or taxes, duties, charges, or fees, which shall all be borne and paid by Company. If it is established, that the correction of a defect, deficiency or error reported by Company is not covered by warranty set out in these Terms, Forciot shall be entitled to charge for diagnosis and location of the defect, deficiency, or error in accordance with the then current price list for service.

Except as expressly provided otherwise, all prices are non-refundable, are payable in advance and are exclusive of VAT (if any). In as far no other conditions of payment have been agreed, payment shall be effected net within thirty (30) days after the date of invoice. All payments shall be made free of all deductions or set offs, unless Forciot has recognised in writing a counterclaim of the Company, at Forciot’s nominated bank account.

In case deliveries are made in portions, these payment conditions apply to each part delivered separately.

If the Company does not pay within the time agreed Forciot has the right, without any proof of default, to charge the Company interest equal to the statutory rate, but at least 7% per year, without prejudice to any other remedy available to Forciot.

If, after the further expiration of a payment date as set forth by Forciot, no payment has been received, the Company will be additionally charged for the amount of the extra-judicial collecting charges. If judicial collection is necessary, the Company is also charged for the costs thereof.

4. DELIVERY AND INSPECTION OF SHIPMENTS

Delivery term for the Products is FCA Forciot’s facility as designated by Forciot (Incoterms 2010) unless otherwise stated in the Forciot order confirmation. In the absence of a specific agreement, Forciot will select the carrier, but by doing so, will not thereby assume any liability in connection with the shipment.

If the confirmation of the order or offer mentions a time of delivery, this time will be considered target period. Delay in time of delivery does not give the Company the right to claim damages, to refuse the goods, or to wholly or partly cancel the Agreement. FORCIOT has the right to carry out the order by means of partial deliveries. Unless there is question of force majeure on the part of FORCIOT, the Company has the right to cancel the Agreement, if after the time of delivery having expired, a new time of delivery has been agreed upon and the new delivery time has been exceeded, excluding any claim for compensation by the Company in case of such cancellation.

The time of delivery ends the moment FORCIOT has informed the Company that the goods are ready for shipment at its factory or warehouse.

Company will examine and inspect the Products on delivery and Company’s acceptance of delivery will be deemed to occur on the expiry of ten (10) calendar days after delivery. Company will promptly and properly report to Forciot any discrepancies Company discovers and will follow any instructions given by Forciot. Any return of Product(s) is subject to Forciot’s prior written acceptance.

5. SAAS SERVICES

During the Term, Company will receive a limited, revocable (in accordance with this Agreement), non-exclusive, non-assignable, non-transferable right to access and use the SaaS Services solely for the Company’s internal business operations subject to the terms of this Agreement.

In order to access the SaaS Services, user will need to register in skid.forciot.com to open an account.

Company acknowledges that this Agreement is predominantly a services agreement and Forciot will not be delivering copies of Software to Company as part of the SaaS Services. “Software” means the object code version of any software to which Company is provided access by Forciot as part of the SaaS Services, including any updates or new versions.

Company shall not, and shall not permit anyone to: (i) copy or republish the SaaS Services or Software, (ii) sublicence, resell or make available the SaaS Services or Software to any Third Party, or otherwise commercially exploit the SaaS Services or Software; (iii) modify or create derivative works based upon the SaaS Services, Software or Documentation, (iv) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the Software used to provide the SaaS Services or in the Documentation, (v) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by Forciot or by applicable law, or (vi) access the SaaS Services in order to build a similar product or competitive product. Subject to the access rights and limited licenses granted herein, title to, and all intellectual property rights in the SaaS Services and Software, associated documents and all parts thereof, that exist prior to the date of the Agreement or are created after the date of the Agreement from developments connected or unconnected with the Agreement including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein, will be and remain vested in and be the absolute property of Forciot who are the owner of the copyright in the Software or associated documents as appropriate. Company agrees to assign all right, title and interest it may have in the foregoing to Forciot.

Company shall: (a) only access or allow access to the SaaS Services through a valid user account assigned to an individual person; (b) not use the SaaS Services in a way that contravenes any applicable licence, instructions or guidelines provided by Forciot and the Agreement; (c) comply with Forciot’s reasonable instructions relating to the security and use of the SKID system including the SaaS Services; (d) notify Forciot immediately of any unauthorised use of the SaaS Services including unauthorised use of any password or user account or any other known or suspected breach of security; (e) not use the SaaS Services fraudulently or in connection with a criminal offence; (f) not use the SaaS Services in any situation requiring fail-safe controls or fail-proof delivery of information; and (g) comply with any relevant third party terms when using the SaaS Services.

Forciot is entitled to prematurely change the technical properties of the SKID system including the SaaS Services (or have the technical properties changed) to improve the functionality and to remedy any faults (or have them remedied) or to comply with the rules laid down by or pursuant to the applicable law. Forciot shall give every effort to trace any faults in the software and to remedy those faults (or have them remedied). However, Forciot cannot warrant that all faults are remedied. If a material difference occurs in the functionality of the SKID system because of such a remedy, Forciot shall immediately inform Company thereof in writing or electronically.

The Company is responsible for the availability and functioning of the (peripheral) equipment and software, tools, configuration and internet connection used by the Company, and for maintaining a connection to the energy network and for other connections and tools necessary to access and use of the SKID system.

Forciot is entitled to temporarily decommission the SKID system including the SaaS Services for maintenance, adjustment or improvement of the computer systems of Forciot. Forciot shall schedule such decommissioning outside office hours as much as possible and shall inform Company of the scheduled decommissioning in a timely manner. Forciot is never obligated to pay any compensation of damages to Company with respect to such decommissioning of the SKID system.

6. DEMO VERSIONS

If Forciot grants the Company access to the SKID system for demonstration purposes (“Demo Version”), the Company’s right to use the SaaS Services shall be limited to (i) the use for internal evaluation purposes. Any productive use is strictly prohibited. The right of use expires automatically after expiry of the period specified by Forciot. The Demo Version may be subject to functional restrictions; any use shall be at the Company’s own risk. When providing a Demo Version for testing purposes, Forciot expressly disclaims any liability in the sense of a warranty for specific properties.

The Company's right to use the Demo Version shall expire on the date specified in Forciot SKID Demo Version Agreement or upon written notification from Forciot.

The Company’s use of the Demo Version is at the Company’s own risk and provided on an "as is" and "as available" basis, without any warranties of any kind, either express or implied. Forciot does not warrant the Demo Version’s fitness for the intended use by the Company, and Forciot does not give any kind of guarantees for the Demo Version.

7. INTELLECTUAL PROPERTY RIGHTS

The Agreement shall not entail the transfer of intellectual property rights, unless agreed otherwise in writing.

The SKID system contains proprietary material of Forciot and/or material that other suppliers have licensed to Forciot for use in the SKID system. This material is protected by copyright and other laws respecting intellectual property rights. Forciot and/or the respective licensors retain all rights in the SKID system, including (without limitation) all copyright and other intellectual property rights worldwide to the SKID system and any amendments, modifications or new versions thereto including any and all associated documentation, manuals and materials provided by Forciot.

The Customer shall have the non-exclusive, non-sublicensable, non-transferrable right to use the Deliverables solely for the purpose of internal evaluation of the feasibility of a possible subsequent R&D and/or licensing co-operation with the Supplier. Software embedded into any Products may only be used as integrated into the Products.

Company may not copy, reverse engineer, decompile, disassemble, adapt, modify or create derivative works of the Products, nor transmit or submit the Products to any third party or remove, alter or modify any trademarks, program markings or notices of proprietary rights contained in the Products. The Company agrees that any information obtained in violation of the restrictions as set forth in this paragraph will be Confidential Information automatically and irrevocably deemed assigned to and owned exclusively by Forciot.

To the best knowledge of Forciot, the (parts of the) SKID system do not illegally infringe the intellectual property rights of any third party. If the SKID system does nonetheless illegally infringe any such rights of third parties, Forciot is entitled to, at its own discretion, limit the consequences thereof as much as possible, by e.g.:

• taking over and mounting a defence against this infringement;
• obtaining the necessary rights, so the infringement no longer exists;
• fully or partially adjusting, replacing and/or retrieving the SKID system.

Company is obligated to inform Forciot as soon as possible of any knowledge of any such infringement and provide Forciot full cooperation in taking said measures, and to refrain from any actions, which have a negative impact on these measures.

Forciot shall have the right to use any data retrieved via the SKID system for the purposes of quality control, research and development (including without limitation right to develop our machine learning systems) and provision of value-added services to third parties, provided always that the information or data disclosed to third parties is generalized data and that data originating from the Company as such is not disclosed to third parties.

Any data, analytics, feedback or suggestions for improvements or enhancements given by the Company to Forciot, including by means of automated upload features, regarding the SKID system (collectively, “Feedback”) does not give the Company any rights in any release of the SKID system or require Forciot to implement the Company’s suggestions or other requirements in any release of products or services related to the SKID system. The Company hereby irrevocably assigns and transfers to Forciot all of the Company’s right, title and interest in and to Feedback and all intellectual property rights associated therewith without any claim for any compensation from Forciot. The rights transferred include without limitation the right to modify and further assign the Feedback.

8. CONFIDENTIALITY

For the purposes of the General Terms, “Confidential Information” shall mean any information and material in whatever form disclosed to the Company by Forciot and either marked as confidential or should be understood to be confidential.  The Company shall keep in confidence all Confidential Information received from Forciot and shall not disclose or hand over Confidential Information to any third party or use Confidential Information for any purposes other than for the Purpose. The Company specifically agrees that all data, software, drawings, know-how, business, technical and financial information it obtains regarding the SKID system are Confidential information of Forciot.

The confidentiality obligation shall, however, not apply to material or information, (a) which is generally available or otherwise public other than by a breach of the Terms by the receiving Party,  (b) which the receiving Party has received from a third party without any obligation of confidentiality, (c) which was in the possession of the receiving Party prior to receipt of the same from the other Party without any obligation of confidentiality related thereto, (d) which the receiving Party has independently developed without using material or information received from the other Party, or (e) which the receiving Party is required to provide  due to law or regulation by the authorities.

The Company shall promptly upon termination of the right to use the SKID system or when the Party no longer needs the Confidential Information in question for the purposes of this Agreement cease using Confidential Information and upon request return or destroy the Confidential Information including all copies thereof in a reliable manner. The Company shall, however, be entitled to retain such material as is required by law or regulation by the authorities.

The rights and responsibilities under this Section 8 shall survive the termination, expiration or cancellation of the right to use the SKID system. Unless otherwise agreed in writing, these rights and obligations shall expire after 5 years from the termination, expiration or cancellation of the right to use the SKID system. 

 9. OWNERSHIP

 Until the final settlement by the Company of payments due to Forciot for the Products, Forciot will retain the ownership of all Products delivered by it as guarantee for payment of all that is due without exception; consequently, as long as complete payment of the amount due to Forciot has not been affected the Company will not be allowed to make a loan on, to pledge or put the Products delivered to it under mortgage, nor to let, lend or in any way or under any title take them away from the business.

The execution, if any, by Forciot of rights to which it is entitled on the basis of the property proviso including the attachment of the Products can in no way be regarded as an act resulting in the cancellation of the agreement.

Risk of loss or damage to the Products supplied by Forciot pursuant to this Agreement shall pass from Forciot to Company on delivery.

10. PRODUCT WARRANTIES

The Products must be installed and operated strictly in accordance with the enclosed operating instructions. Any liability on the part of Forciot for improper use of the Products shall be excluded.

Forciot warrants that the Products, excluding any Software and software components, are at the time of delivery free from defects in materials and workmanship, provided the Products remain unmodified and are installed and operated according to the instructions provided by Forciot and under normal and proper conditions. Warranty period for Products is twelve (12) months from the date of delivery of Products.

Company shall be responsible for the shipment of defective Products to Forciot or its authorized service supplier and for all costs and risks associated with this transportation. The return shipment to Company’s centralized depot shall be at Forciot’s expense unless Forciot determines that there is no defect in the Product or where Forciot determines that the Product is not eligible for warranty.

Forciot’s obligations under this warranty are limited to cover only to replacement of defective Products. Warranty for the replacement product will be the remainder of the original warranty period or three (3) months from the date of delivery of the replacement Product, whichever is longer.

The above warranty provisions shall not apply to any Product, a) which has been repaired, tampered with, altered or modified, except by Forciot's authorized service personnel; b) in which the defects or damage result from normal wear and tear, misuse, negligence, improper installation, storage, water or other liquids, use of software, parts or accessories not approved or supplied by Forciot; c) which has been subjected to unusual physical or electrical stress, abuse, or accident, or forces or exposure beyond normal use within the specified operational and environmental parameters; or d) which is used in a manner not permitted by Forciot.

TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT FOR THE EXPRESS WARRANTIES IN THE AGREEMENT, FORCIOT PROVIDES THE SKID SYSTEM AND SERVICES ON AN "AS-IS" BASIS. FORCIOT, ITS AFFILIATES, AND THIRD-PARTY PROVIDERS DISCLAIM AND MAKE NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING REPRESENTATIONS, GUARANTEES OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ACCURACY. COMPANY ACKNOWLEDGES THAT (A) NEITHER FORCIOT, ITS AFFILIATES NOR ITS THIRD PARTY PROVIDERS CONTROLS COMPANY EQUIPMENT OR THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES (INCLUDING THE INTERNET); (B) THE SERVICES MAY BE SUBJECT TO LIMITATIONS, INTERRUPTIONS, DELAYS, CANCELLATIONS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE COMMUNICATIONS FACILITIES; AND (C) IT IS FULLY RESPONSIBLE TO INSTALL APPROPRIATE SECURITY UPDATES AND PATCHES. FORCIOT, ITS AFFILIATES, AND ITS THIRD PARTY PROVIDERS ARE NOT RESPONSIBLE FOR ANY INTERRUPTIONS, DELAYS, CANCELLATIONS, DELIVERY FAILURES, DATA LOSS, CONTENT CORRUPTION, PACKET LOSS, OR OTHER DAMAGE RESULTING FROM THESE PROBLEMS.

The Company acknowledges that the Forciot SKID system cannot be used as sole means for measuring and monitoring load. The Company shall also set up continuous visual monitoring of the object being measured. Products supplied by Forciot are not 100% fault tolerant and are not designed, manufactured, or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance, or other environments and applications in which the failure of operation(s) could lead directly to death, personal injury, or severe physical or environmental damage. Forciot explicitly disclaims all sale, transfer and use of Products to such environments and applications. Company shall indemnify and hold Forciot harmless from any liability related to sale, transfer and use of Products in mentioned environments and applications. Products and Services are priced in accordance with proper limitations of liability.

No warranty is given and Forciot is not liable under any warranty if:

• Company has conducted or conducts changes, repairs and/or other work to the Products, whether or not by a third party;
• the Products are or have not been used or treated carefully pursuant to the requirements or manual delivered or applicable or are or have been incompetently or wrongly used or treated in another way;
• the Products are or have been used for other purposes than for which they are intended;
• the Products are or have been used in a way, which could not have been expected by Forciot;
• Company fails to comply with any instructions of Forciot with respect to the maintenance, use and/or cleaning, which has caused the defect of the Products;
• the defect was caused by (i) force majeure, (ii) wear, (iii) inadequacy of or defects in the items, materials, commodities or tools required by or originating from Company, (iv) the applicability of any government regulations, or (v) comparable causes;
• Company has not complied with all his obligations towards Forciot;
• Company does not offer or offers Forciot insufficient opportunity to repair the defect within the meaning of the warranty scheme; or
• Forciot is not notified in writing within fourteen (14) days after the defects have been identified by Company.

11.LIABILITY

Except in the case of gross negligence, willful misconduct or fraud, Forciot’s maximum liability to the Company, and Company’s maximum liability to Forciot, shall not exceed the price of the Product(s) or service(s) causing any such liability. Neither party will be liable to the other for any indirect losses, such as loss of profit or goodwill, or costs of cover purchase, even if such loss was reasonably foreseeable.

In no event will Forciot, its affiliates and its licensors, service providers, employees, agents, officers and directors be liable for damages of any kind, under any legal theory, arising out of or in connection with the Company’s use, or inability to use, the SKID system, including any direct, indirect, special, incidental, or consequential damages, including but not limited to, personal injury, pain and suffering, emotional distress, loss of revenue, loss of profits, loss of business or anticipated savings, loss of use, loss of goodwill, loss of data, even if foreseeable.

12. REFERENCE

Forciot may present the Company as a reference in its marketing activities on a general level only with the prior written consent of the Company.

13. DATA SECURITY AND BACKUP, PERSONAL DATA

Each Party shall comply with the measures agreed by the Parties in writing and the legal requirements set out in applicable laws related to data security, privacy in processing personal data and backup requirements.

Each Party shall ensure that the Party’s own environments, such as equipment, service production facilities and business premises, within that Party’s responsibility, are protected against data security threats in accordance with the adequate data security procedures used by the Party, and shall ensure that measures relating to data security and backup are complied with.

Each Party shall be responsible for making back-up copies of its data and data files and for verifying the functionality of such back-up copies.

No personal data is foreseen to be processed by Forciot on behalf of the Company. In case Forciot would process personal data on behalf of the Company, the Company shall be responsible for ensuring that it has the right to provide such personal data for the Purpose and the Parties shall agree on the terms and conditions relating to such processing of personal data separately in writing.

14. APPLICABLE LAW

The right to use the SKID system and these Terms shall be governed by and construed in accordance with the laws of Finland excluding its choice of law provisions. The application of the U.N. Convention on Agreements for the International Sale of Goods is excluded.  Any dispute, controversy or claim arising out of or relating to the right to use the Demonstrator(s) or these Terms shall be finally settled by arbitration in accordance with the Arbitration Rules of the Finland Chamber of Commerce by one (1) arbitrator. The arbitration shall be held in Helsinki, Finland in the English language. Notwithstanding the foregoing, each Party shall have the right to seek interim orders or injunctions or any other provisional remedies available under applicable law and to enforce an arbitral award in any competent court of law. Forciot shall have the right to claim for outstanding receivables at the competent court of Company’s domicile.  

 15. EXPORT RESTRICTIONS

 Company acknowledges that each Product and any related software and technology, including technical information supplied by Forciot or contained in documents may be subject to export, re-export or import restrictions. Company shall at all times comply with all applicable export laws, rules and regulations. Company shall cooperate fully with Forciot in any official or unofficial audit or inspection related to applicable export or import control laws or regulations and shall indemnify, defend and hold Forciot and its affiliates harmless from any violation of this clause by Company or its employees, consultants, agents or customers.

 The Company may not transfer the Products to any third party under any circumstances. 

16. TERM AND TERMINATION

Forciot shall provide the SaaS Services for an initial fixed period of three (3) years commencing on the date that the Agreement comes into force and thereafter until terminated by either Party on giving the other Party ninety (90) days prior written notice and on the expiration of such notice the Agreement shall terminate.

The Agreement may be terminated immediately in writing by either Party if: (a) the other Party is in material breach or continuing breach of the Agreement and, if capable of remedy, such breach is not remedied within thirty (30) days after receipt of notice in writing of such breach; or (b) a notice is issued for the purposes of convening a meeting to approve the placing of a Party in administration or liquidation, or a petition is presented or an order made for the administration or liquidation of a Party or a Party otherwise becomes subject to dissolution proceedings (or an event analogous to any of the events mentioned in this clause in respect of the other Party in any jurisdiction to which it is subject).

Forciot reserves the right to suspend delivery of the SaaS Services and other Services if Company fails to pay in a timely manner any undisputed amounts due to Forciot under the Agreement, but only after Forciot notifies Company of such failure and such failure continues for fifteen (15) days. Suspension of the SaaS Services or other Services shall not release Company of its payment obligations under the Agreement. Company agrees that Forciot shall not be liable to Company or to any Third Party for any liabilities, claims or expenses arising from or relating to suspension of the SaaS Services resulting from Company’s non-payment.

The Company can withdraw from the Agreement within 90 days from the date that the Agreement comes into force without giving reasons. In order to meet the deadline, a clear written declaration must be made to Forciot which clearly states that the Company wishes to withdraw from the Agreement.

Upon termination or expiry of the Agreement for any reason: (a) Forciot shall immediately cease providing the SaaS Services and all usage rights granted under the Agreement shall terminate; (b) Company shall immediately pay to Forciot without set-off or deduction all of Forciot’s outstanding unpaid invoices and interest in connection with the Agreement and, in respect of Products, SaaS Services and/or Services supplied but for which no invoice has yet been submitted, Forciot shall submit an invoice, which shall be payable by Company immediately on receipt without set-off or deduction; (c) each Party shall return to the other Party all Confidential Information belonging to the other Party in its possession, custody or control; (d) each Party shall cease use of the other Party’s Confidential Information and intellectual property; and (e) each Party shall, at its sole option, either return or destroy all records, documentation, data, and any other information and all copies thereof which are owned by or licensed to the other Party. Forciot shall have no obligation to safeguard or transmit to Company any data that Company may have stored through the use of the SaaS Services. Company is responsible for the back-up and retrieval of such data. Clauses of the Agreement which expressly or by implication have effect after termination or expiry shall continue in full force and effect including without limitation the obligations of confidentiality.

17. MISCELLANEOUS

If any provision of these Terms is held to be invalid or unenforceable, the other provisions of these Terms shall remain in full force and effect. The invalid provision shall be replaced with a valid one which achieves to the extent possible the original purpose and commercial goal of the invalid provision.

Any modification or amendment to the Terms shall be agreed in writing. The terms and conditions of these Terms shall prevail notwithstanding any different or inconsistent terms in any purchase order or other document of the Company.

Company acknowledges that the SaaS Services is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Forciot’s ability to provide the SaaS Services or other technology, including any features or functionality first developed for Company, to other parties.

Each Party shall be excused from performance for any period during which, and to the extent that, such party or any subcontractor is prevented from performing any obligation or Service, in whole or in part, as a result of causes beyond its reasonable control, and without fault or negligence, including without limitation, riot; civil unrest, military action, acts of terrorism or war, earthquake, storm, flood, epidemics, inability to obtain supplies of power, fuel, or transport, exercise of emergency powers by any governmental authority, acts of government or other competent regulatory authority.

A failure by a Party to use any of its rights under the Terms shall not be construed as a waiver of such right.

Neither Party may assign its rights or obligations under these Terms, either wholly or in part, without the written consent of the other Party. Forciot may nonetheless transfer its rights and obligations under the Terms to such third party to whom the business activities related to the SKID system have been transferred.