This master subscription agreement is made by and between Supernova.io INC, Delaware entity number: 7171181, VAT ID/EIN: 83-2789008, Registered office: 1111B S Governors Ave STE 6495, Dover, Delaware 19904, United States of America as the “Provider” and the “Customer”
1. DEFINITIONS, LIST OF DOCUMENTS AND CONTACTS
1.1. In addition to the terms defined elsewhere in the Agreement, the following terms have the meanings set forth in this Article 1.1:
1.2. Customer hereby confirms that it received access to, read, and agrees with the content of the following electronic documents (collectively the “Documentation”). Documentation constitutes an integral part of the Agreement:
2. SUBJECT OF THE AGREEMENT
2.1. Subject to and conditioned on Customer’s and its Users’ compliance with the terms and conditions of this Agreement as well as with the Terms of Third Parties, the Provider shall grant the Customer access and right to use the Service. Customer shall pay the agreed price for granted access and right to use the Service.
2.2. Provider shall fulfill its obligation to grant access and right to use the Service to the Customer by granting access to the Service to the master account email address specified in Annex 1 (the “Master Account”) and sending access data to the Master Account e-mail address specified in Annex 1. Provider shall do so within 7 days after the price set forth in Annex 1 is paid in full by the Customer.
3. RIGHT TO USE THE SERVICE
3.1. The right to use the Service is non-exclusive, non-transferable, worldwide (not limited by territory), limited by Term (as defined in Article 14.1), and limited for use solely for Customer’s internal business operations as specified in the Documentation.
3.2. The right to use the Service is further limited by the number of Users specified in Annex 1. By using the Master Account, the Customer may create additional User accounts (the “User Accounts”) up to the number of Users specified in Annex 1. Each User Account can be used by only one User; the actual number of Users may not exceed the limit. If the number of Users is not actually utilized, no refund is applicable.
3.3. Parties can agree to decrease the number of Users and the price for the subsequent Renewal Term. If the Customer wishes to increase the number of Users beyond the scope specified in Annex 1, it shall contact the Provider. Provider will subsequently provide the Customer with a price offer for the increase in the number of Users. Upon the Customer’s acceptance of the price offer, the Provider shall issue an invoice to the Customer for the increased number of Users and the Customer shall pay the invoiced price. User Accounts up to the increased number of Users may be created by the Customer after the invoiced price is paid in full.
3.4. For the avoidance of any doubt, the limitation of the right to use the Service up to the number of Users specified in Annex 1 or further increased according to Article 3.3. shall not apply to so-called viewers (the “Viewers”), who can join and view the Customer’s workspace as permitted by the Service but cannot use the full functionalities of the Service. The Customer may invite Viewers up to the number of Viewers and within other limits specified in Annex 1; Viewers shall not be regarded as Users.
3.5. Customer may not use the Service in a manner that could compete with the Provider or in a manner that could in any way harm the Provider.
3.6. Nothing in this Agreement, except as provided in Article 7.2, grants any right, title, or interest in or to (including any license under) any intellectual property rights in or relating to, the Service, Provider materials (including Documentation, other information and documents, materials, works, and other content, methods, processes, software, plans, or reports, that are provided or used by Provider in connection with the Service or otherwise comprise or relate to the Service), or third-party materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Provider materials, and the third-party materials are and will remain with Provider and the respective rights holders in the third-party materials.
4. TERMS OF USE
4.1. Software is provided as a Service and runs on third-party infrastructure; the Customer will not obtain a copy of the Software that the Customer would otherwise load to its own computer or server. No source, machine, or object code to Software will be made available to Customer. As between the Parties, the Provider (and its licensors) retain all rights, title, and interest in and to the Service, the Software, and all related materials, including all intellectual property rights, subject only to the limited right to access and use the Service expressly granted under this Agreement.
4.2. Customer shall ensure that the devices and internet browsers from which the Service will be accessed and the Customer’s Internet connection meet the current system and other technical requirements (including necessity to install plugins or other necessary software of third parties) specified in the Documentation. The Documentation may include other technical parameters for use of the Service. The Customer must comply with all such technical requirements when using the Service.
4.3. Customer is aware that the Documentation and the system or technical requirements may change from time to time as a result of Service updates. The Provider does not bear any responsibility for errors that arise from non-compliance with the current Documentation and system or technical requirements.
4.4. Provider is constantly innovating in order to provide the best possible experience for its clients. The Customer acknowledges and agrees that the form and nature of the Service may change from time to time. The Provider shall inform the Customer in advance about any changes in the Service that may have a negative impact on the integrity of data and projects stored by the Customer in the Service; in other cases, the Service may be changed without prior notice. The Provider represents and warrants that in no event shall the Service be diminished or degraded in its essential functions as a result of any innovation by the Provider.
4.5. Customer shall back up all data that was uploaded as an input in the Service. The Provider is not liable for loss or damage to the data.
4.6. Customer must not:
4.7. Provider is entitled to monitor and control the number of Users who log in to the Service and the manner in which they use the Service.
4.8. Customer shall ensure that all Users are familiar with the terms of use of the Service before the Users start using the Service. Customer is responsible for any breach of the terms of use of the Service by any person to whom it makes the Service or User Account available as if the Customer had breached the Agreement itself.
4.9. Customer must keep access data to User Accounts confidential and protect such data from disclosure, publication, and / or misuse by third parties. The Customer shall without undue delay, but no later than within 24 hours, inform the Provider about any and all actual or suspected loss, theft, or misuse of access data to User Accounts and shall take appropriate action (e.g., ask the Provider to block the access data).
4.10. Customer will provide reasonable cooperation that Provider may request to deliver the Service and to resolve incidents or support requests. Such cooperation may include, where relevant: (i) identifying an authorized contact person for technical and billing matters; (ii) providing necessary information to reproduce an issue (e.g., steps, screenshots, logs available to Customer, affected workspace/user IDs); (iii) confirming whether a proposed workaround or fix resolves the issue; and (iv) timely responses to Provider’s questions related to Customer’s configuration or use of the Service. Provider will not request access to Customer systems outside the Service unless strictly necessary and agreed by the Parties. If Customer materially delays or fails to provide the requested cooperation, Provider will not be in default for any resulting delay, and any agreed timelines will be extended accordingly.
4.11. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement.
4.12. The Service may be subject to U.S. export control laws and regulations and may be subject to import laws and regulations of foreign jurisdictions. Customer shall comply with all applicable export and import laws and regulations in its access to and use of the Service. Customer represents and warrants that: (a) Customer is not, and is not owned or controlled by, any person or entity that is the target of U.S. sanctions or located, organized, or resident in a country or territory that is subject to comprehensive U.S. sanctions; (b) Customer and its Users are eligible under U.S. law to receive the Service; and (c) Customer will not, and will not permit any Users or third parties to, sell, export, re-export, transfer, use, or enable the use of the Service, related technology or services, or any items provided by Provider, in violation of applicable export controls or sanctions, including for prohibited end-use or by prohibited end-users. Provider may suspend or terminate the Agreement and/or Customer’s access to the Service if Provider reasonably determines that Customer’s or any User’s use of the Service violates, or may cause Provider to violate, applicable export controls or sanctions.
5. PROVISION OF OTHER SERVICES
5.1. In addition to the right to use the Service, the Provider may also provide the Customer with other services (hereinafter “Other Services”), if any, specified in Annex 1.
5.2. If Other Services specified in Annex 1 are needed, the Customer shall contact the Provider. The Provider will subsequently provide the Customer with an offer specifying all the relevant details (price, term, etc.). Customer shall accept or reject the offer within 5 days of the Customer’s receipt of the offer. Upon acceptance, the offer becomes a binding order.
5.3. Unless the Parties expressly agree otherwise, the Provider shall commence provision of Other Service only after the price for their provision has been paid in full.
6. PRICE AND PAYMENT
6.1. The price for the number of Users of the Service for the Initial Term is specified in Annex 1. The Provider shall issue an invoice for the price for the Initial Term within fourteen (14) days from the Effective Date of this Agreement.
6.2. Unless the Parties agree that purchase order must be issued in writing prior invoicing, the subscription renews automatically and the Customer is obliged to pay the price upon renewal.
6.3. Provider is entitled to change the price for next Term (e.g., in response to inflation). Provider shall notify the Customer of the change by e-mail or via notification in the Service at least thirty (30) days prior to the expiration of the then-current Term. If Customer does not agree with the price increase, it may terminate the Agreement effective at the end of the then-current Term by delivering a notice of non-renewal before the start of the new Term. Unless the Customer notifies the Provider according to Article 14.2. that it wishes to terminate the Agreement, the Customer agrees that the notified price change shall apply for the Renewal Term.
6.4. Provider shall issue an invoice for the price for any Other Services within fourteen (14) days after the binding order for Other Services is made.
6.5. Prices do not include value added tax (VAT), sales, use, transaction privilege, gross receipts, cash collections, excise, goods, services, transfer, or similar taxes, duties, customs, tariffs, imposts, or any surcharges or escheat requirements (collectively, the “Taxes”).
6.6. All Taxes are borne by the Customer. Provider is entitled to "gross up" or increase any payment to the Provider for such Taxes and the Customer is obliged to pay such Taxes. Customer shall apply all reasonable efforts to ensure that Provider cannot be held liable for any Taxes and costs or damages thereto, shall promptly inform Provider of any such liability and shall provide Provider with all relevant information and documentation in that respect.
6.7. Invoices are due within the period specified in Annex 1 unless the Parties agree on a different maturity period in case of an individual invoice.
6.8. Customer shall pay the invoices to the bank account specified in the invoice, using all the listed payment identifiers (e.g., variable symbol, constant symbol, etc.).
6.9. All invoices will be sent to the invoicing e-mail address of the Customer specified above.
6.10. If any undisputed invoice remains unpaid for more than ninety (90) days after its due date, Provider may suspend access to the Service (including disabling Customer’s and Users’ access) until all overdue amounts are paid, provided Provider has given Customer at least ten (10) days’ prior notice of the intended suspension. Customer remains responsible for maintaining its own backups/exports of Customer Content and data. To the maximum extent permitted by applicable law, Provider is not responsible for any loss of data or inability to access data resulting from a suspension due to non-payment.
6.11. Except where required by applicable law or expressly stated in this Agreement, all fees and charges are non-refundable and non-cancellable, and Customer is not entitled to any refunds, credits, or offsets for any partial term, unused capacity (including unused Users), downgrades, or periods of non-use. For the avoidance of doubt, Provider will not provide any service credits for downtime, outages, performance issues, or changes in the Service, except as expressly set forth in Annex 2 (SLA) (Service Credits) or as otherwise expressly agreed by the Parties in writing.
7. PROVIDER RESOURCES AND USER CONTENT
7.1. When using the Service, the Customer may choose to create and save various data (e.g., design templates) to the Provider cloud storage. Except as expressly stipulated in Agreement and also except for the limited rights that are necessary for the Provider to store, backup, or transfer the Customer’s data when necessary for the Provider to do so, the Customer does not grant the Provider any ownership over the contents of the Customer’s design data or over its intellectual property included in the contents or design data. Customer is solely responsible for protecting and enforcing any rights related to such content, and the Provider has no obligation to do so on the Customer’s behalf.
7.2. To enable the Customer to create User-Created Exporters, the Provider grants the Customer a non-exclusive, non-transferable license to use the components, data model, and all exportable functionalities which are available in Standard Exporters (the “Resources“). Customer may use the Resources freely, but under no circumstances shall the Customer use the Resources in such manner that would constitute economic or any other competition to the Provider or that could harm the Provider. The Provider has no responsibility for any Exporters even when they are published on Provider‘s subdomains.
7.3. Provider does not claim any ownership rights in the User-Created Exporters and the Customer can use, distribute, and publish the User-Created Exporters and their source codes (e.g., by posting them publicly on GitHub) at its own will and without restrictions (except for rules which protect the Software as a whole under Article 7.4.). However, the moment any User-Created Exporter becomes publicly available, regardless of the method of its publication or person that published it, the Customer hereby grants the Provider a non-exclusive license (meaning the Customer is free to license User-Created Exporters to anyone else in addition to the Provider) to use, reproduce, distribute, lease, lend, sell, prepare derivative works of, combine with other works, exhibit, perform, and publish the User-Created Exporter. The license is worldwide, perpetual, royalty-free (meaning that the Provider is not required to pay the Customer for the use of the User-Created Exporters), sublicensable, and irrevocable. The Customer specifically agrees that the Provider may incorporate the User-Created Exporters into the Service and distribute them together with the Service for consideration. The Customer further agrees not to restrict or inhibit the use of the User-Created Exporters by any other person. The Provider is not obliged to use the license.
7.4. Customer can use software of third parties (including free and open-source software) to create User-Created Exporters only under the following conditions. The Customer, but not the Provider, is liable for any damage caused and is responsible for the breach of licensing terms of any third-party works and for the damage caused by the breach of the following conditions: The Customer is strictly prohibited from publishing or otherwise making available User-Created Exporters that contain works of third parties (including dynamically linked libraries) if the Customer does not have sufficient authorization to do so, or if such publication or availability would: (a) entail communicating the source code of the Software or the Resources to third persons; (b) require further conveyance or distribution of the work under a particular license, or (c) lay down similar requirements incompatible with the Provider´s licensing terms for end-users (i.e., a proprietary, non-transferable license that does not allow sublicensing, gaining source code, modifications, or derivative works). Customer shall not use, in particular, but not limited to, any works licensed under general public licenses that contain copyleft clauses, such as any version of GNU General Public License (GPL), GNU Lesser General Public License (LGPL), GNU Affero GPL, and other licenses that contain terms incompatible with this Article.
7.5. Customer is solely responsible for any content and outputs that the Customer and its Users create while using the Service and for the consequences of use of such content and outputs. Provider takes a passive and neutral approach to content and outputs created and published by the Customer and its Users while using the Service. This means that the Provider generally does not monitor the content or actively search for facts or circumstances that would indicate that it is illegal. Provider may on its own initiative conduct voluntary investigations or take other measures to detect, identify, remove, or disable access to illegal content. Provider may also take necessary measures to ensure compliance with legal requirements or orders from regulatory authorities. However, the Provider is not responsible for the illegality, inaccuracy, or reliability of user content.
7.6. Provider accepts notices about the appearance of content within the Service that Users (or any other third party) consider to be illegal. Such notice may be sent to security@supernova.io. If the notice contains the electronic contact information of the person submitting it, the Provider will send an acknowledgement of receipt of the notice without undue delay. Provider will also inform such person without undue delay of its decision with respect to the information to which the notice relates and provide information on further legal remedies available to such person in relation to that decision. If the Provider becomes aware of unlawful activity, illegal content or content that is inconsistent with the Agreement, the Provider may take action to remove or disable access to it. Alternatively, the Provider may impose restrictions on the User or the Customer by suspending, or terminating the Service to such User or Customer.
8. DUTY OF CONFIDENTIALITY
8.1. Confidential information (the “Confidential Information”) is non-public information of a commercial or technical nature, including trade secrets, access details to User Accounts, information on price, insurance, clients, business partners, employees, business plans, and other non-public information that the average person would consider to be confidential in view of its content or the manner in which it was disclosed.
8.2. Confidential Information shall not include information that is (a) in the public domain at the time of disclosure or enters the public domain without breach of this Agreement, (b) known to the receiving Party prior to the disclosure or is independently developed by the receiving Party, (c) obtained by the receiving Party in good faith from a third party not under an obligation of secrecy to the other Party.
8.3. Each Party shall preserve the confidentiality of any Confidential Information received from the other Party. The receiving Party is entitled to use the Confidential Information only in accordance with this Agreement and solely for the purpose of performance of Parties' obligations under the Agreement. The receiving Party shall take reasonable care to protect Confidential Information from any loss or unauthorized disclosure.
8.4. The receiving Party may disclose Confidential Information to comply with applicable laws or order of a court of competent jurisdiction, regulatory authority, or governmental department or agency; provided, however, the receiving Party shall give prior written notice of such disclosure to the disclosing Party (unless such notice is prohibited by law or otherwise commercially impracticable).
9. LIMITED WARRANTY
9.1. Provider warrants (the “Limited Warranty”) that as of the Effective Date, the Service: (a) materially operates in conformance with the Documentation; and (b) does not contain any virus or other malicious code that would cause the Service to become inoperable or incapable of being used in accordance with the Documentation.
9.2. Limited Warranty does not apply and becomes null and void if the Customer breaches any provision of this Agreement, or if the Customer, any User, or any other person provided with access to the Service by the Customer or User, whether or not in violation of this Agreement: (a) uses the Service in connection with any software not specified in the Documentation; (b) modifies or damages the Service; or (c) misuses the Service, including any use of the Service other than as specified in the Documentation.
9.3. If the Service fails to comply with the Limited Warranty and such failure is not excluded from Limited Warranty pursuant to Article 9.2 (the “Defect”), the Provider shall, subject to Customer promptly notifying Provider in writing of such Defect, at its sole option within 45 days of the notification of the Defect either: (a) repair or replace the Service, provided that Customer provides Provider with all information Provider requests to resolve the reported Defect, including sufficient information to enable the Provider to recreate such Defect; (b) modify the Service so as to provide the Customer with a functionally equivalent, compatible, and non-defective service; or (c) refund the unused pro rata portion of price paid for the Service, subject to Customer's ceasing all use of the Service. The remedies set forth in this Article are Customer's sole remedies and Provider's sole liability under the Limited Warranty.
10. INDEMNIFICATION
10.1. Provider shall indemnify the Customer from and against any losses, damages, liabilities, and costs (the "Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding (the "Claim") that the Service or use of the Service in accordance with this Agreement, infringes such third party's patents or copyrights, provided that such Claim is finally awarded by a competent court and the Customer promptly notifies the Provider in writing of the Claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such Claim.
10.2. If such a Claim is made or appears possible, Customer agrees to permit Provider, at Provider's sole discretion, to (a) modify or replace the Service, or component or part thereof, to make it non-infringing, or (b) obtain the right for Customer to continue using the Service. If Provider determines that none of these alternatives is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. The remedies set forth in this Article are Customer's sole remedies and Provider's sole liability for Claims that the Service or use of the Service infringes or misappropriates third party rights.
10.3. Provider’s indemnification obligation pursuant to previous sections of this Article 10 will not apply to the extent that the infringement arises from: (a) use of the Service in combination with data, software, service, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (b) modifications to the Service not made by Provider; or (c) any third-party products provided with or incorporated into the Service.
10.4. Customer shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any and all losses, damages, liabilities, fines, penalties, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim, suit, action, or proceeding resulting from or based on: (a) any content, data, materials, or information that Customer or any User submits to, uploads to, transmits through, stores in, or otherwise makes available via the Service (including any User-Created Exporters and any content included therein), and any applications, exports, outputs (including any AI outputs), or other materials generated, published, distributed, or used by Customer or any User in connection with the Service, including any Claim alleging that such content or outputs infringe, misappropriate, or otherwise violate any intellectual property right, privacy right, publicity right, confidentiality obligation, or other right of any third party; (b) Customer’s or any User’s use, inclusion, distribution, publication, or making available of any third-party software, libraries, or other works (including open-source software) in connection with the Service or in any User-Created Exporter in breach of Article 7.4, applicable Terms of Third Parties, or other licensing/contractual obligations, including any Claim arising because Provider uses, incorporates, hosts, distributes, or makes available a User-Created Exporter (including through the Service or Provider’s subdomains) and a third party alleges that such User-Created Exporter (or any component of it) violates licensing terms or other third-party rights or obligations; (c) Customer’s or any User’s violation of applicable law or regulation or the Agreement, including any Claim arising from unlawful, infringing, defamatory, obscene, or otherwise prohibited content, unauthorized processing of personal data, or misuse of the Service.
10.5. Customer may not settle any Claim against Provider unless such settlement completely and forever releases Provider from all liability with respect to such Claim or unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Claim or to participate in the defense thereof by counsel of its own choice.
11. INSURANCE AND LIMITATION OF LIABILITY
11.1. Provider shall maintain insurance policies providing at least the coverage of Provider’s currently agreed insurance. Provider’s current insurance certificate is available for download via Provider’s Trust Center and has been made available to the Customer prior to executing this Agreement. Upon request, Provider will provide Customer with a currently effective insurance certificate.
11.2. EXCEPT FOR THE LIMITED WARRANTY PROVIDED IN ARTICLE 9.1, THE PROVIDER HEREBY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE SERVICE AND OTHER SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ESPECIALLY ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICE OR OTHER SERVICES OR THE RESULTS OF THE USE THEREOF, WILL MEET THE CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION (UNLESS OTHERWISE AGREED IN ANNEX 2), ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, SYSTEM, OR SERVICES, OR BE SECURE, ACCURATE, COMPLETE, OR ERROR FREE. SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND SHALL HAVE ONLY THE CHARACTERISTICS SPECIFIED IN THE AGREEMENT AND DOCUMENTATION. CUSTOMER WAIVES ALL RIGHTS FROM DEFECTIVE PERFORMANCE THAT ARE NOT SPECIFICALLY AGREED HEREUNDER. ALL MATERIALS OF THIRD PARTIES ARE PROVIDED “AS ARE” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY MATERIALS OF THIRD PARTIES ARE STRICTLY BETWEEN THE CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH MATERIALS OF THIRD PARTIES.
11.3. IN NO EVENT SHALL EITHER PARTY, ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE TO THE OTHER PARTY, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF AGREEMENT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICE; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SERVICE SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, or (g) AMOUNTS EXCEEDING THE PRICE PAID TO PROVIDER BY THE CUSTOMER FOR USE OF THE SERVICE UNDER THIS AGREEMENT DURING 12 MONTHS PERIOD PRIOR TO THE OCCURRENCE OF SUCH LOSS OR DAMAGE. IN EACH CASE, THE LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF THE CIRCUMSTANCES, OR WHETHER THE OTHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11.4. Exclusions and limitations in Articles 11.2 and 11.3 do not apply to liability for Party’s gross negligence or willful misconduct, and to obligations to make payment under this Agreement.
11.5. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WHATEVER THE LEGAL BASIS FOR THE CLAIM, THE PROVIDER WILL NOT BE LIABLE FOR ANY DIRECT OR INDIRECT DAMAGES (INCLUDING, WITHOUT LIMITATION, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES), DAMAGES FOR LOST PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) DUE TO, RESULTING FROM, OR ARISING IN CONNECTION WITH MATERIALS OF THIRD PARTIES.
11.6. Provider may make AI features and/or beta or prototyping features available within the Service from time to time, including through Third-Party Materials (“AI Features” and “Beta Features”). AI Features are provided as assistive tools intended to support, not replace, human decision-making. Customer is solely responsible for reviewing, testing, validating, and determining the suitability of any AI output before using or relying on it in production or otherwise. AI output may be inaccurate, incomplete, misleading, offensive, or unreliable. As between the Parties, Customer retains all rights, title, and interest in outputs generated through the use of AI Features, to the extent permitted by applicable law. Provider does not use Customer Content (including prompts, inputs, and outputs processed through AI Features) to train or improve any machine learning or language models. Provider also does not permit its third-party AI providers to use Customer Content for model training or improvement. AI Features, AI output, and any Beta Features are provided “as is” and “as available,” without warranties of any kind, and may contain errors, defects, or instability. Provider makes no warranties that AI output (or any results from Beta Features) will be accurate, complete, reliable, non-infringing, or suitable for any particular purpose, and AI output may not be copyrightable in some cases and may therefore be provided without any copyright license.
12. COMMUNICATION OF THE PARTIES
12.1. The Parties shall communicate with each other in English.
12.2. Contact persons are specified in the header of the Agreement. Any change in the contact persons will be notified by the concerned Party in writing without undue delay.
12.3. The requirement of written form is deemed to be met if the electronic text with a simple electronic signature is delivered to the e-mail address of the contact person of the other Party, or by other electronic means agreed by the Parties during the Term of the Agreement. The electronic message is considered delivered on the day following the day on which the electronic message was sent.
13. PERSONAL DATA AND OTHER DATA
13.1. During provision of Service, personal data of Users may be processed. When activating Master account, the processing of personal data is governed by Privacy Policy of the Provider. Processing of personal data of Users for purposes stipulated by the Provider is also governed by Privacy Policy of the Provider.
13.2. Provider may also store personal information about Users and work with personal information about User based on the Customer instructions, for purposes stipulated by the Customer and in accordance with this Agreement. In this case, the Provider will process personal data as data processor and processing is governed by Annex 3 – Data processing terms.
13.3. Service is not intended for the storage or processing of personal data of third parties beyond what is necessary for the administration and use of the Service (e.g., user account and team administration data such as names, work e-mail addresses, roles or job titles). Customer remains responsible for ensuring that it has an appropriate legal basis to provide such personal data to Provider and for fulfilling any information or other obligations towards the relevant data subjects. Where Provider‘s breach of this clause results in claims, fines, damages or other costs asserted against Provuder by a third party or a public authority, Customer shall indemnify and hold Provider harmless for such losses and reasonable costs (including legal fees).
14. TERM AND TERMINATION
14.1. Agreement shall commence on the date of the last signature below (the “Effective Date”) and remain in full force and effect for the period of 1 year (the “Initial Term”). Agreement shall be automatically (and repeatedly) extended and renewed for additional period of the same length as the Initial Term (each, a “Renewal Term” and the Renewal Terms collectively with the Initial Term shall be referred to herein as the “Term”), unless either Party gives the other Party notice of non-renewal in accordance with Article 14.2.
14.2. Customer must provide Provider with written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term. If Customer does not deliver such notice on time, the Agreement will automatically renew for the next Renewal Term in accordance with Article 14.1.
14.3. Customer may terminate the Agreement at any time without stating a reason effective upon delivery of written notice of termination to the Provider. However, unless expressly agreed otherwise, the Provider provides no refunds. Upon any expiration or termination of this Agreement, all prices that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable and Customer shall pay such prices. Provider shall refund to the Customer unused pro rata portion of price paid for the Service only if the Agreement is terminated due to material breach of the Agreement by the Provider.
14.4 In addition to any other express termination right set forth elsewhere in this Agreement: (a) either Party may terminate this Agreement for material failure by the other Party to comply with the terms of this Agreement (provided such breach is not cured within thirty (30) days after written notice of the breach is received from the other Party); (b) either Party may terminate this Agreement immediately in the event the other Party seeks the protection of any bankruptcy court, becomes insolvent, or makes an assignment for the benefit of creditors; (c) Provider may terminate this Agreement, effective on written notice to Customer, if Customer breaches any of its obligations under Article 4.6.
14.5. Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement: (a) all rights, licenses, consents, and authorizations granted by either Party to the other hereunder will immediately terminate; (b) Customer shall cease use of the Service and the Provider may disable Customer’s and User’s access to the Service; (c) each Party shall return or at the election of the disclosing Party destroy and erase all Confidential Information and all other material received from such other Party, and provide the other Party with a signed written statement certifying that it has complied with the foregoing obligations.
14.6. Provisions set forth in the following Articles will survive any expiration or termination of this Agreement: 7.3 (license to exporters), 10.4 (Customer indemnification), 11 (limitation of liability), 14 (Term and termination), and 15 (Final provisions). The duty of confidentiality (Article 8) lasts for as long as the Confidential Information is protected as a trade secret, otherwise for a period of five years from the date of termination of the Agreement.
15. FINAL PROVISIONS
15.1. Agreement and all legal relations arising from it or related to it are governed by the law of Delaware with the exclusion of rules on conflict of law.
15.2. Parties agree to submit to the exclusive jurisdiction of the courts of Delaware to resolve any matters arising from this Agreement. Notwithstanding anything contained in this Agreement, the Provider shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
15.3. Agreement may not be assigned by either Party without the prior written consent of the other Party; provided that either Party may assign this Agreement as a whole without the prior written consent of the other Party to any affiliate or other entity of the Party that controls, is controlled by, or is under common control with the Party. Any purported assignment in violation of this Article is void. Such written consent, if given, shall not in any manner relieve the assignor from liability for the performance of this Agreement by its assignee.
15.4. If a Party's obligations are interrupted or interfered with by an event beyond its reasonable control – including but not limited to: (a) fire, flood, casualty, lockout, strike, labor conditions, unavoidable accident, civil disturbance, terrorism, war, embargoes, cyber-security attacks including DDoS, national calamity, epidemic, pandemic, mechanical or other breakdown of electrical or sound equipment or plant, riot, act of God; (b) any enactment of law; (c) any order of any legally-constituted authority; or (d) any other similar cause -the obligations of the Parties hereto shall be suspended during the period of such interruption or interference, and a period of time equivalent to the period or periods of suspension shall be added to the time of performance of this Agreement, provided that if (x) such time is reasonably certain to exceed 90 days, or (y) such delay in fact exceeds 90 days, then either Party may, at its election, terminate this Agreement upon 10 days written notice to the other Party. The events of Force Majeure as described in this Article shall not affect payment obligation of any of the Parties.
15.5. If any provision of the Agreement is or becomes invalid, null, void, or unenforceable, the other parts of the Agreement are not affected and shall remain in full force and effect as if the invalid or unenforceable provision had never been a part of this Agreement. The Parties agree to replace these provisions with valid, effective, and enforceable provisions, which are not null and void, of the same commercial and legal significance within 14 (fourteen) days from the delivery of the written request of the other Party.
15.6. Failure of either Party to complain of any default by the other Party or to enforce any of such Party’s rights, no matter how long such failure may continue, will not constitute a waiver of that /Party’s rights under this Agreement. No waiver of any provision of this Agreement shall constitute a waiver of any other provision or a waiver of the same provision at any later time.
15.7. Provider may identify the Customer as a customer of the Provider and use Customer’s logo and trademarks on Provider’s website.
15.8. Agreement and any attached Annexes constitute the entire agreement between the Parties and supersedes all prior oral and written agreements. Any attached Annex is hereby incorporated by reference into this Agreement and is governed by the provisions of this Agreement. Agreement may be amended only in a writing signed by both Parties.
15.9. List of Annexes:
ANNEX 1 – Order form
Please, request on sales@supernova.io
ANNEX 2 - SLA
1. Definitions
1.1. “Available” means that the Service is available for access and use by Customer over the Internet and operating in material accordance with the Documentation.
1.2. “Service Level Failure” means a material failure of the Service to meet the Availability Requirement.
2. Service levels
2.1. Subject to the terms and conditions of the Agreement, Provider will use commercially reasonable efforts to make the Service Available at least 99% of the time as measured over the period of 365 consecutive days starting with the first day of the Term (each such period, a “Service Period”), excluding unavailability as a result of any of the Exceptions described below (the “Availability Requirement”).
2.2. For purposes of calculating the Availability Requirement, the following are “Exceptions” to the Availability Requirement, and neither the Service will be considered unAvailable nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer to access or use the Services that is due, in whole or in part, to any:
3. Service Level Failures and Remedies
3.1. In the event of a Service Level Failure, Provider shall issue a credit to Customer in the amount of 10 % of the monthly price (pro rata portion of the price in case of yearly subscription term) for the Service due for the Service Period in which the Service Level Failure occurred (each a “Service Credit”), provided that Provider has no obligation to issue any Service Credit unless the Customer:
3.2. Any Service Credit payable to Customer under this Agreement will be issued to Customer in the subscription term following the subscription term in which the Service Level Failure occurred. If no other subscription term shall follow due to termination of the Agreement, the Service Credit is payable to Customer based on an invoice issued by the Customer within 1 month from the termination of the Agreement.
3.3. This Article 3 sets forth Provider’s sole obligation and liability and Customer’s sole remedy for any Service Level Failure.
4. Service Support
4.1. Provider shall provide Customer with Service Support. Service Support means support of normal use of the Service and includes provision of information contained in the Documentation.
4.2. Customer may raise support queries by e-mail sent to support@supernova.io.
4.3. Provider will initially respond to new Service Support queries within 2 business days during excluding weekends and public holidays.
ANNEX 3 - DATA PROCESSING TERMS
These Data Processing Terms (hereinafter also “DPT”) constitute a part of the Agreement which was concluded by the Customer with the Provider.
By concluding the Agreement, the Customer confirms that the Customer read and agrees with this DPT.
1. INTRODUCTORY PROVISIONS
1.1. Under the Agreement, the Provider provides Software as a Service solution to the Customer. The Customer will be enabled to access the Software and use its functionalities online. For the purpose of this DPT, personal data means personal data of data subjects, which are in particular Users and other data subjects whose personal data have been processed by the Provider for the purpose of providing the Software to the Customer and fulfilling other obligations under the Agreement (hereinafter also "Personal Data").
1.2. This DPT regulates the conditions for the processing of personal data by the provider as a processor of personal data within the meaning of Article 28 of Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation or “GDPR”).
1.3. Where Customer personal data are transferred to a third country outside the EEA which is not subject to an adequacy decision pursuant to Article 45 GDPR, Provider shall ensure that appropriate safeguards pursuant to Article 46 GDPR are in place. In particular:
2. TASKS AND INSTRUCTIONS FOR DATA PROCESSING
2.1. Parties acknowledge and agree that:
2.2. If the Customer acts as a processor, he/she guarantees to the Provider that the competent controller has approved his instructions and actions in connection with Personal Data, including the mandate of the Provider as another processor.
2.3. Provider will process Personal Data only in accordance with applicable law and for the purpose of providing the Software to the Customer, and as further stated in other written instructions given by the Customer.
2.4. By written instruction pursuant to the Article 2.3. of this DPT is also considered an instruction made by e-mail stipulated in the header of the Agreement or by the Software.
3. DURATION OF PROCESSING OF PERSONAL DATA
3.1. Provider will process Personal Data only for the duration of the Agreement or until all Personal Data are deleted by the Provider according to this DPT, and the Privacy Policy in case the Provider acts as a personal data controller..
4. NATURE AND PURPOSE OF THE PROCESSING OF PERSONAL DATA
4.1. For the purposes of providing the Software to the Customer, the Provider will process Personal Data in electronic form, while the subject-matter of the processing will be viewing Personal Data, using Personal Data to create User profile, storage of Personal Data, building and maintaining design systems collaboratively with unprecedented ease and other activities necessary for providing Software and services that Software allows under the Agreement.
4.2. The purpose of the processing of Personal Data is the provision of the Software and ensuring the functionalities of the Software.
5. TYPES OF PERSONAL DATA
5.1. The following Personal Data will be processed in accordance with this DPT:
6. CATEGORIES OF DATA SUBJECTS
6.1. Personal Data will cover the following categories of data subjects:
7. RIGHTS AND OBLIGATIONS OF THE PARTIES
7.1. Provider declares and undertakes to:
7.2. If the Provider receives any request from a data subject in relation to Personal Data when processing Personal Data as a data processor, the Provider shall inform the data subject to contact the Customer directly with the request. The Customer is responsible for handling such request. The Provider undertakes to provide the Customer with all the cooperation necessary for the settlement of the rights of data subjects.
7.3. Customer agrees that the Provider will involve other processors for the processing of Personal Data and, if these other processors are involved, ensure that they comply with the same data protection obligations as those set out in this DPT. Provider maintains an up-to-date list of its sub-processors, including their locations and the nature of processing, in its Trust Center (or a similar online resource) accessible to the Customer.
7.4. The Provider shall inform the Customer in written form set by the Provider (or via updating the sub-processor list available in the Trust Center or a similar online resource) about the involvement of the additional sub-processor before the involvement of the additional sub-processor, and the Customer may object to the involvement of the additional sub-processor within 10 (ten) business days after notification. If the Customer does not object within the time limit, the Provider will engage the additional sub-processor. If the Customer objects, the Provider will assess the objection and, if it finds it justified, it will not engage the additional sub-processor or make commercially reasonable change to the Customer’s configuration or use of the Service to avoid processing by such sub-processor. If change is not possible, the Provider may terminate the contractual relationship with the Customer (or part of it) or not provide the part of the Service to which the additional sub-processor is linked, without being in default or in breach of any obligation.
7.5. Customer expressly agrees that the Provider will involve in the processing the Provider's workers who work for the Provider on the basis of a mandate agreement or similar agreement.
7.6. Provider is obliged to enable the Customer, or the person authorized by him/her to check compliance with this DPT, in particular the obligations for the processing of Personal Data resulting therefrom and will contribute to these checks according to reasonable instructions of the Customer or the controlling person. The Customer shall bear all costs associated with this check, audit or an inspection.
7.7. The Parties agree that checks (including audits) shall be conducted in a manner that is reasonable and proportionate, with prior notice es per art. 7.9. of these DPT, during normal business hours, and with scope limited to the processing of Customer’s Personal Data. Provider may satisfy audit requests by providing relevant documentation and responses (including materials available via the Trust Center). On-site audits shall take place only where reasonably necessary and where other means are insufficient (e.g. where an audit is required by applicable law or a competent regulatory authority, or in the event of a confirmed personal data breach affecting Customer’s data).
7.8. Customer acknowledges that Provider’s independent third-party security certifications and audit reports (including SOC 2 Type II and ISO/IEC 27001) made available via Provider’s Trust Center or sent to the Customer by the Provider may be used as evidence of Provider’s compliance with its security and data protection obligations under these DPT.
7.9. Customer is obliged to send any request for an audit exclusively to the e-mail address of the Provider stipulated in the header of the Agreement. Upon receipt of the audit request, and if the Provider deems the audit reasonable, necessary and unachievable by other reasonable comparable means, the Provider and the Customer first agree in advance on: (a) the possible date of the audit, security measures and how to ensure compliance with confidentiality obligations during the audit, and (b) the expected beginning, scope, and duration of the audit. In the event that no agreement is reached within 30 days from the date of submission of the application, the terms of the audit shall be determined by the Provider.
7.10. Provider may object in writing against any auditor who has been entrusted with the Customer, if the auditor is not sufficiently qualified in the opinion of the Provider, is not independent, is in a competitive position with the Provider or is otherwise obviously unsuitable. On the basis of the objection raised, the Customer is obliged to appoint another auditor or to carry out the audit himself.
7.11. Customer is responsible for fulfilling all obligations in relation to the processing of Personal Data, in particular for properly informing data subjects about the processing of Personal Data, obtaining consent to the processing of Personal Data, if necessary, processing requests of data subjects about the realization of their rights (such as the right to information, access, rectification, erasure, restriction of processing, object, etc.).
8. SECURITY OF PERSONAL DATA
8.1. Provider has taken the following measures and undertakes to maintain them to ensure the security of the processing of Personal Data throughout the processing process.
8.2. Organizational measures:
8.3. Provider undertakes to take such technical, personal, and other necessary measures to prevent unauthorized or accidental access to Personal Data, their change, destruction or loss, unauthorized transfers, their other unauthorized processing, or other misuse of Personal Data.
8.4. Provider undertakes to take appropriate technical and organizational measures in order to ensure a level of security commensurate with the risk, taking into account the state of the art, nature, scope, context, and purposes of processing as well as different probable risks to the rights and freedoms of individuals.
8.5. Such appropriate measures include, in particular, the pseudonymization and encryption of Personal Data, the ability to ensure the continued confidentiality, integrity, availability and resilience of processing systems and services, the ability to restore the availability of and access to Personal Data in the event of physical or technical incidents, the process of regular testing, assessment and evaluation of the effectiveness of the technical and organizational measures in place to ensure processing security.
8.6. Provider has implemented and will maintain an information security management system aligned with industry standards. As of the Effective Date, Provider holds SOC 2 Type II and ISO/IEC 27001 certifications (or equivalent), which cover the Services provided under this Agreement. Provider shall maintain such certifications or a comparable level of security during the term of the Agreement.
8.7. Provider will secure the Software from cyber-attacks in the most appropriate way, taking into account the nature of Personal Data and the state of the art.
9. END OF THE PROCESSING
9.1. After termination of the Agreement, regardless of the manner or reason for termination, Provider will, within six (6) months, delete all Personal Data processed on Customer’s behalf under these Data Processing Terms and delete all access data to the Software and other communication tools. This does not apply to the extent that data retention is required by applicable law, or to Personal Data that Supernova processes as a data controller (e.g., where a User maintains an individual user profile created independently of the Agreement or chooses to keep such user profile), in which case such Personal Data will be processed in accordance with Supernova’s Privacy Policy.
10. OTHER ARRANGEMENTS
10.1. Provider is entitled to charge the Customer for the costs incurred in accordance with any request referred to in the Article 7 of this DPT or with any check including an audit referred to in the Article 7.6. and following of this DPT. These costs will be paid by the Customer based on an invoice issued by the Provider.
10.2. Provider is not liable for any direct or indirect damage, especially lost profits, special or incidental damage that the Customer incurred in connection with the processing of Personal Data, even if the Customer notifies the provider in advance that the damage could occur. The Provider is not liable for non-material damage incurred by the Customer.
10.3. Should the Provider still be obliged to pay any compensation to the Customer, this obligation is limited according to the limitations set forth in the MSA .
10.4. Provider’s trust report is available at: https://app.vanta.com/supernovaio/trust/gi7a46lxd23m07sgju3ook