General terms and conditions
Last updated on: February 2026
ARTICLE 1: DEFINITIONS
In these General Terms and Conditions of Helin Data B.V. (hereinafter: ‘Terms and Conditions’) the following terms shall, when written with a capitalized letter, have the meaning as set forth herein:
1.1 “Affiliate(s)” means any entity that controls, is controlled by, or is under common control with a party, including where such control exists through ownership of more than fifty percent (50%) of the voting securities or other ownership interest. “Control” means the power to direct the management or policies of an entity, whether through ownership, contract, or otherwise.
1.2 “Agreement” means this Master Services Agreement, each appendix attached, and any Ordering Document(s) or Statements of Work between Helin and Customer for the provision of Helin Products or Services.
1.3 “Authorized User” means: (i) in the case of an individual accepting this Agreement on such individual’s own behalf, such individual; or (ii) an individual authorized by Customer to use the Helin Products or Services for Customer’s business purposes in accordance with the terms and conditions of this Agreement, and to whom Customer has supplied user credentials or user access. Authorized Users may include employees, consultants, contractors and agents of Customer, and, if permitted in the Agreement and/or Documentation, third parties with which Customer transacts business.
1.4 “Confidential Information” means any information, disclosed by or on behalf of either Party or its Affiliates regardless of its nature or form, whether in writing, electronically, verbally or by any other means, either directly or indirectly to the other Party, or otherwise acquired by the receiving party or its Affiliates, in connection with this Agreement or any Ordering Document, and all information derived or generated therefrom, whether or not marked as ‘confidential’, ‘secret’, ‘proprietary’ or other similar language, including all information of which the receiving party reasonably understands or ought to understand to be confidential. Confidential Information may include but is not limited to: marketing plans, customer lists, strategies, product data, projections and sales information including data regarding costs, productivity, formulas, techniques, trade secrets, know-how, inventions, processes (business, technical or other), designs, algorithms, source code, technological advances, scientific information, technical, financial, operational, administrative and economic information related to past, present and future ideas, concepts, drafts, products, Services, business plans, experience, documents, software, programming techniques, developments, or data related to manufacturing products, plans, drawings, costs, equipment, materials, samples, technology, packaging as well as visual information that one Party, its Affiliates, customers, and/or its sub-contractors may receive from the other Party, its Affiliates, customers, and/or its sub-contractors.
1.5 “Connected Application” means Customer’s or a third party’s web-based or other software application that interoperates with the Product(s).
1.6 “Content” means information, data, materials, media or other content provided by or on behalf of Customer and/or its Authorized Users for use with Helin Products or Services, including data from third party applications enabled by Customer or an Authorized User.
1.7 “Customer” means an individual or entity that has: (i) entered into this Agreement by electronically accepting the terms; (ii) downloading, installing, accessing or using the Helin Products or Services, (iii) where an Ordering Document has been executed, the entity identified on the Ordering Document.
1.8 “Delivery Date” means the date on which access to the Helin Products or Services is initially made available (via download or otherwise) to Customer, which date may be specified in an Ordering Document.
1.9 “Documentation” means the then-current technical and user documentation for the Helin Products, including the applicable product descriptions (available upon request).
1.10 “Export Control Laws” means export control laws and regulations of the U.S., E.U., and other foreign governments, as well as regulations and sanctions declared by such governments, including the U.S. Department of the Treasury Office of Foreign Assets Control, the U.S. Department of Commerce, the Council of the E.U. and their counterparts under applicable law, including all end user, end use and destination restrictions.
1.11 “Hardware” means the tangible products, hardware, equipment, materials, supplies, or other physical items sold, leased, licensed, or otherwise provided by Helin to the Customer under this Agreement, whether now in existence or later developed, and including all related documentation, manuals, and packaging.
1.12 “(Helin) Products” means, as applicable and/or reflected in the relevant Ordering Document, the Hardware, Subscription, Software, and/or Implementation Services.
1.13 “(Implementation) Services” means any consulting services implementing Helin Products, either performed for Customer by Helin or a third party Helin contractor under the terms of this Agreement and/or SOW.
1.14 “IP Claim” means a claim brought by a third party alleging that the Helin Products or Services, as delivered by Helin and used as authorized under this Agreement and the Documentation, infringes upon any third-party copyright, trademark or a patent.
1.15 “Marks” means Helin’s or Customer’s trademarks, service marks, trade names, logos, and designs, whether or not specifically recognized, registered or perfected, including without limitation, those listed on Helin’s website and on the Helin Products.
1.16 “Order (Confirmation) Form” means the Helin ordering document for Helin Products.
1.17“Ordering Document” means an Order (Confirmation) Form, statement of work, or other written document pursuant to which Customer orders Helin Products or and/Implementation Services.
1.18 “Party” or “Parties” means Helin and Customer, individually and collectively, as the case may be.
1.19 “SaaS Services” means the Helin software-as-a-service platform that connects remote operations with central systems.
1.20 “(Implementation) Services” means any implementation consulting services performed by Helin and/or a third party Helin contractor for Customer under the terms of this Agreement.
1.21 “Software” means the generally available release of Helin software made available under this Agreement, in object code form, as initially provided or made available to Customer, as well as updates to the software that Helin elects to make available at no additional charge to all of its customers that subscribe to Subscription.
1.22 “Statement Of Work” or "SOW” means the Helin ordering document for Implementation Services.
1.23 “Subscription” means the related license for the Software, Support and/or Helin SaaS Services provided by Helin to Customer (including to any software client that must be downloaded and installed to use the Helin SaaS or use any other Helin Product or Service). Subscription does not include early release, beta versions or technical previews of product offerings, and excludes Hardware.
1.24 “Subscription Term” means the subscription period(s) specified in an Ordering Document during which Customer is licensed to use the Helin Products under the Agreement.
1.25 “Support” means Customer technical support, including access to updates for the Helin Products, which are provided by Helin or its affiliates to Customer as part of a paid Subscription.
ARTICLE 2: CUSTOMER RIGHTS AND RESPONSIBILITIES
2.1 Helin Products. Subject to and conditioned upon Customer’s compliance with the terms and conditions of this Agreement, Helin grants to Customer a limited, non-exclusive, non-transferable and non-sublicensable right to access and use the Helin Products solely for Customer’s internal business operations, provided any use of Helin Products shall be: (i) in accordance with the Documentation and this Agreement; and (ii) for the scope, term and quantity limits purchased.
2.2 Support. Helin shall provide Support for Customers who have purchased a Support subscription for Helin Products in accordance with Helin’s then-current Support Policy. The applicable Support terms are set forth in the Helin SLA.
2.3 Use Restrictions. Customer will not, nor permit or authorize anyone to:
2.3.1 distribute, convey, lend, lease, share, sell, transfer, sublicense, rent, or time share any of the Helin Products, or any of its components or product keys, or permit third parties to download or install any Software;
2.3.2 copy, decompile, disassemble or reverse engineer or otherwise attempt to extract or derive the source code or any methods, algorithms or procedures from the Helin Products, except as otherwise expressly permitted by applicable law, or modify, adapt, translate or create derivative works based upon the Helin Products;
2.3.3 alter or circumvent any product, key or license restrictions, or transfer or reassign a named user license or entitlement, in such a manner that enables Customer to exceed purchased quantities, defeat any use restrictions, or allows multiple users to share such entitlement to exceed purchased quantities;
2.3.4 use, offer, embed, sell, or otherwise exploit the Helin Products in any managed service provider (MSP) offering; independent software vendor (ISV) offering; OEM Offering, platform as a service or integration platform as a service (PaaS or iPaaS) offering; service bureau; or other similar product or offering, including offering standalone Helin Products as a hosted service. “OEM Offering” refers to Customer’s use of Helin Products to add capabilities or features to a commercial product or service for sale to a third party;
2.3.5 use the Helin Products if Customer is a competitor, or use the Helin Products in any manner that competes with Helin or for any purpose that is to Helin’s detriment, including benchmarking, collecting and publishing data or analysis relating to the performance of the Helin Products, or developing or marketing a product that is competitive with any Helin Product or Service(s);
2.3.6 use the Helin Products in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law;
2.3.7 interfere with or disrupt the integrity, operation, or performance of the Helin Products or interfere with the use or enjoyment of it by others, including bypassing or breaching any security device or protection used for or contained in the Helin Products; or
2.3.8 the Customer is responsible for designing, configuring, parameterizing, and tuning the SaaS Services, converting and uploading any data, and making any necessary adjustments to its hardware and user environment.
2.3.9 use the Helin Products (including any software client that must be downloaded and installed to use Helin SaaS Services), Documentation or Services for any purpose or application not expressly permitted by this Agreement and the applicable Documentation.
2.4 Helin Marks. Customer may not remove or obscure any Helin Marks or other copyright, trademark or other proprietary notice displayed or included in the Helin Products.
2.5 Use. Customer shall ensure that use of Helin Products and Services is at all times compliant with this Agreement and all applicable laws, including any Export Control Laws. Customer is solely responsible for compliance relating to the manner and purpose in which it, or its Authorized Users, choose to use Helin Products, including the use, transfer and processing of Content, and any industry specific requirements to which Customer may be subject. Any legal or regulatory compliance obligations of Customer shall remain Customer’s sole responsibility, and nothing herein is intended to shift such burden from Customer to Helin. For the avoidance of doubt, the Helin Products and Implementation Services are not intended to serve as a substitute for, or method of, compliance with any legal or compliance obligations to which Customer may be subject, and under no circumstances shall Helin have any liability to Customer arising from Customer’s non-compliance with such obligations.
2.6 Access. Customer is solely and directly responsible and liable: (i) for maintaining the security of all keys, user IDs, passwords and other credentials, as well as for the assignment and deactivation of user credentials; (ii) for all acts and omissions taken by its Authorized Users or under any of its keys or credentials; (iii) to promptly notify Helin of any unauthorized use or access and take all steps necessary to terminate such unauthorized use or access. Customer will provide Helin with such cooperation and assistance related to any unauthorized use or access as Helin may reasonably request.
2.7 Content. Customer acknowledges and agrees that it has the sole responsibility: (i) to administer user access to Helin Products and the Content; (ii) for the input and administration of Content by an Authorized User for use with Helin Products, including deletion of Content prior to expiration or termination of the subscription; (iii) to ensure Helin has all rights necessary to host, store, adapt or integrate such Content as required to provide Helin Products; and (iv) for maintaining Content on the systems from which they are sourced and maintaining backup copies of Content. Customer hereby represents and warrants on behalf of itself and its Authorized Users that it has all of the rights in the Content necessary for the use, display, publishing, sharing and distribution of the Content and that such use of the Content under this Agreement does not violate any third-party rights, legal obligations, laws, or this Agreement. Customer grants Helin a nonexclusive, worldwide, royalty-free right to reproduce, display, adapt, modify, transmit, distribute and otherwise use the Customer Content: (a) solely for the purpose of providing the Products and Services under this Agreement; (b) to prevent or address technical or security issues and resolve support requests; (c) at Customer's direction or request, enable integrations between Customer’s Third-Party Applications and the Products and Services; and (d) as otherwise required by applicable law.
ARTICLE 3: IMPLEMENTATION SERVICES
3.1 Services. Helin may provide Implementation Services to Customer pursuant to this Agreement and the applicable Ordering Document.
3.2 Helin and Customer acknowledge that constructive, accurate, and timely cooperation is essential to the success of the Services. The Customer shall provide all necessary cooperation and information in a timely manner and Customer warrants that any information it supplies is complete and accurate. If, in Helin’s reasonable opinion, the required cooperation or information is not provided, is incorrect, or is inadequate, or if any Customer payment obligation is overdue, Helin may suspend performance of the Services. In such cases, Helin may also charge a reasonable fee for delays caused to the Services.
3.3 Customer Responsibilities. Helin and the Customer agree that timely and accurate cooperation is essential for the Implementation Services; the Customer must provide all necessary and correct information and assistance, and Helin may suspend Implementation Services or charge reasonable fees if cooperation is lacking or payments are overdue. The Customer is solely responsible for selecting, managing, and using the Implementation Services and their results, which are provided “as is” without guarantee of completeness or accuracy, and assumes all risks from any third-party software it requires Helin to use. Helin is not obligated to follow changes to the scope of Implementation Services, and any such work will be billed at agreed or standard rates. The Customer may not copy, modify, reverse engineer, distribute, sublicense, resell, or otherwise misuse the Implementation Services, including to avoid fees or breach export laws, nor may it use or procure the Implementation Services for third parties; if it does so, it remains responsible and must indemnify Helin for resulting claims or losses. The Customer grants Helin, its affiliates, and subcontractors a perpetual, worldwide, royalty-free license to use and incorporate into the Implementation Services any feedback, suggestions, or recommendations provided, provided such feedback does not identify the Customer or its users. At Helin’s request, the Customer will also assist in any investigation regarding compliance with use restrictions.
3.4 Helin Responsibilities. Helin will perform the Implementation Services with commercially reasonable care and competence, consistent with what may be expected of a professional provider of similar services and in accordance with any technical or functional specifications agreed in writing with the Customer, and unless otherwise agreed, will perform them on business days during Helin’s regular business hours. The Implementation Services are provided as an obligation of means (inspanningsverplichting) and Helin does not guarantee that they will meet the Customer’s intended use, goals, or purposes. Unless otherwise agreed, the Customer must cease all use of any software or Implementation Services provided by Helin immediately upon request or upon completion of the Implementation Services, permanently remove them from its systems, and, if requested, confirm such compliance in writing.
ARTICLE 4: ORDERING
4.1 Ordering. Customer is responsible for the accuracy and completeness of the information it provides. Even if an offer states a validity period, it remains non-binding and may be changed at any time unless agreed otherwise in writing. Helin will not be bound by any budget communicated by the Customer unless expressly agreed in writing. Quoted fees are valid for 30 days from the date the quote is issued. Revised offers may contain updated fees.
4.2 Price Changes. Prices may change after the Parties execute an Ordering Document due to market fluctuations. If Helin Products ordered for the Customer are more than 10% above the quoted price, Helin will consult the Customer before ordering. After thirty (30) days prior notice to Customer, Helin may increase hourly rates and periodic fees once a year based on the Dienstenprijsindex – DPI (2021=100). Any renewal will be subject to Helin’s then-current rates and fees, including for third-party technology, services, or goods. If a sole-source vendor changes its pricing, Helin may adjust its prices accordingly (in addition to normal indexation). At the Customer’s request, Helin will provide proof of the vendor’s new pricing.
4.3 Delivery Periods. Helin will use reasonable efforts to meet agreed delivery dates, which are only target dates and never strict deadlines. Delivery dates may shift if the scope of any engagement changes, Services or Hardware are adjusted, the implementation approach changes, or if Customer personnel, information, or access are unavailable. Missing a delivery date is not a breach of the Agreement by Helin and Helin is not liable for delays or their consequences.
4.4 Scope Change; Regulatory Compliance. If Helin performs work outside the agreed Services, such as assisting with GDPR compliance, certifications, or changes requested by the Customer, these will be billed at Helin’s current hourly rates, unless otherwise agreed in the applicable Ordering Document.
ARTICLE 5: FEES, PAYMENT
5.1 Fees. Customer shall pay any fees due in accordance with the payment terms set forth in the Ordering Document (including required advance payments). Unless specifically stated otherwise in the Ordering Document, all prices, rates, Taxes, or any other fees are in Euros.
5.2 Payment. Payments are non-cancelable, non-refundable and non-creditable with no right of offset or suspension, except as otherwise expressly provided in this Agreement. Unless otherwise stated in the Applicable Ordering Document payment is due thirty (30) days from Customer’s receipt of Helin’s invoice. Notwithstanding anything to the contrary in the Ordering Document, all Subscription fees are due and owing for the full Subscription Term when purchased, and any arrangement permitting installment payments is provided to Customer solely as a courtesy that shall be deemed revoked by Helin upon a material breach of this Agreement by Customer at Helin’s discretion.
5.3 Unpaid Fees. Any late payments will accrue late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and Customer shall reimburse Helin for all reasonable costs and expenses incurred in collecting any late payments. Unless Customer objects in writing to any invoice from Helin within ten (10) days following its receipt of an invoice, Customer is deemed to have approved such invoice and may not subsequently dispute the same. Fees for Implementation Services are exclusive of travel costs and expenses. If Customer fails to make any payment when due, Helin may, without limiting its other rights and remedies, temporarily suspend Customer’s account or access to Helin Products. Customer will remain responsible for all fees incurred before and during any suspension. Use of Helin Products is subject to usage or quantity limits. If Customer’s use exceeds purchased quantity limits, Customer will be invoiced and shall pay for such additional quantities monthly in arrears at the fees which may be set forth in an Ordering Document.
5.4 Taxes. Fees do not include Taxes, levies, duties, and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, excise, withholding, value-added and other taxes and duties. and charges of any kind imposed by federal, state, or local governmental or regulatory authority on any amounts payable by Customer (“Taxe(s)”), exclusive of any tax on Helin’s income. Customer shall directly pay any such Taxes or duties assessed against it, unless Customer provides Helin in a timely manner with a valid certificate of exemption or other evidence that items are not taxable. Helin reserves the right to determine the Taxes for a transaction based on Customer’s “bill to” or “ship to” address, or other location information for Customer’s use of the Helin Products or Services. If Customer is required by any governmental authority to deduct any portion of the amount invoiced by Helin, Customer shall increase payment by an amount necessary for the total payment to Helin to be equal to the amount originally invoiced.
5.5 Billing Information. Customer agrees to provide Helin with accurate, timely and complete payment and invoicing information, including current contact information and tax identification numbers.
ARTICLE 6: WARRANTIES
6.1 General Warranty. Each Party represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (ii) it has the full legal right and authority to enter into this Agreement; and (iii) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.
6.2 Software Warranty. Helin warrants that, when used as authorized under this Agreement: the Software will operate substantially in accordance with the applicable Documentation during the relevant Subscription Term. Customer must assert any claim for breach of this warranty within thirty (30) days of the date on which the condition giving rise to the claim first appears.
6.3 Implementation Services Warranty. Helin warrants that the Implementation Services will be performed using reasonable care and skill consistent with generally accepted industry standards. Customer must assert any claim for breach of this warranty within thirty (30) days of Customer’s receipt of the applicable Implementation Services.
6.4 Exclusions. The warranties set forth in Sections 6.2 and 6.3 will not apply if the event giving rise to the warranty claim was caused by: (i) Customer’s misuse or unauthorized use of or modifications to the Helin Products or Implementation Services; (ii) third-party hardware, products, software or services, including Third-Party Materials and Third-Party Applications; (iii) any use of the Helin Products or Implementation Services other than as permitted under this Agreement; (iv) Customer’s failure to install the most recent update made generally available to customers; or (v) a Force Majeure Event. Customer’s exclusive remedy, and Helin’s sole liability, with regard to any breach of the warranties set forth in Section 6.2 and 6.3 will be, at Helin's option and expense, to either: (i) repair or replace the non-conforming Helin Products or Implementation Services; or (ii) terminate the affected Helin Products or Implementation Services and refund to Customer, on a pro rata basis, any unused, prepaid fees as of the termination effective date. Customer shall provide reasonable assistance to Helin in support of its efforts to furnish a remedy for any breach of such warranties.
6.5 Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, ALL HELIN PRODUCTS, SERVICES, SUPPORT, DOCUMENTATION, AND OTHER INFORMATION, MATERIALS, AND IMPLEMENTATION SERVICES PROVIDED BY HELIN ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, HELIN AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS, PARTNERS, SERVICE PROVIDERS, LICENSORS, AND RESELLERS DO NOT WARRANT THAT: (I) HELIN PRODUCTS, SERVICES, OR SUPPORT WILL BE UNINTERRUPTED OR ERROR FREE; (II) HELIN PRODUCTS, SERVICES, OR SUPPORT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (III) THE RESULTS OF USING HELIN PRODUCTS, SERVICES, OR SUPPORT WILL MEET CUSTOMER’S OR ANY AUTHORIZED USER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, OR COMPLETE. IT IS CUSTOMER’S SOLE RESPONSIBILITY TO EVALUATE WHETHER: (A) USE OF THE OUTPUT OF ANY HELIN PRODUCT OR SERVICE IS APPROPRIATE FOR CUSTOMER’S USE CASE; AND (B) REVIEW AND INDEPENDENT VERIFICATION IS APPROPRIATE BEFORE USING OUTPUT. ANY PREDICTIVE OR ANALYTICAL SERVICES INCLUDED IN THE HELIN PRODUCTS ARE FOR INFORMATIONAL PURPOSES ONLY AND NOT A GUARANTEE OF FUTURE RESULTS OR PERFORMANCE.
ARTICLE 7: ON PREM/SELF-MANAGED SOFTWARE
7.1 License. Subject to the terms of the Agreement and Customer’s, Helin grants to Customer during the Subscription Term a non-exclusive, non-transferable and non-sublicensable right and license: (i) to install and use the Software on premises or in a cloud environment of its choosing, in object-code form, solely for Customer’s internal business purposes, subject to the license entitlements and other limits set forth in the Ordering Document; and (ii) to use any third-party software provided with the Software, subject to the applicable third-party licenses.
ARTICLE 8: CONNECTED APPLICATIONS
8. Connected Applications. The Products contain features designed to interoperate with Connected Applications, which may be Helin provided only. To use such features, Customer or its Authorized Users may be required to obtain access to such Connected Applications from the providers, and grant Helin access to Customer’s or its Authorized Users’ account(s) on such Connected Applications. If Customer uses a Connected Application with the Helin Product(s), Customer grants Helin permission to allow the Connected Application and its provider to access Customer Data solely as required for the interoperation of that Connected Application with the Product(s). Disclaimer: Helin provides interoperability with Connected Applications provided by Helin only and as a courtesy, on an as-is basis, and not part of the subscription to Products. Helin makes no warranty or guarantee as to the interoperability or availability of any Connected Applications and Customer’s use of any such Connected Applications is wholly at Customer’s own risk. Helin may terminate interoperability with Connected Applications at any time in Helin’s sole discretion, after providing Customer commercially reasonable notice (except in the case where the Connected Application poses a security risk). Any acquisition by Customer of Connected Applications, and any exchange of Customer Data between Customer and any Connected Application provider, product, or service, is solely between Customer and the applicable Connected Application provider. Helin does not warrant or support Connected Applications. Helin is not responsible for any disclosure, modification or deletion of Customer Data and/or Content resulting from access by any Connected Application or its provider, and/or for any non-Helin provided Connected Applications. Customer is solely responsible for any network or internet connectivity required to access or use the Helin Products.
ARTICLE 9: AI FEATURES
9. AI Features. From time to time, Helin may make available certain functionalities that allow Customer to utilize artificial intelligence, machine learning, or similar technologies through or in connection with the Product’s processing of Customer Data (the “AI Features”). Customer Data will not be used to train or improve Helin or third-party foundation models without Customer’s prior written consent. Customer or its Authorized Users may provide input, including Customer Data, for use with the AI Features (“AI Input”) and receive output generated and returned by the AI Features based on the AI Input (“AI Output”). Other customers providing similar AI Input to the Al Features may receive the same or similar AI Output. Customer acknowledges and agrees that Customer is responsible for reviewing and validating AI Output for its needs and technical environment before electing to use AI Output. Customer agrees to comply with any applicable AI Feature restrictions described in the Documentation. Disclaimer: Notwithstanding any contrary provision herein, Helin does not represent or warrant that the AI Output will be accurate, complete, error-free, or fit for a particular purpose.
Customer herewith acknowledges and agrees that Helin may use de-identified and aggregated Customer data and/or Content to develop, train, and improve its artificial intelligence (AI) systems, machine learning models, and related technologies, including but not limited to improve Helin Products and monitor and adjust the Helin Subscription where required. All such use will be performed in compliance with applicable data protection and privacy laws, and no data will be used in a way that could reasonably identify you or your end users.
ARTICLE 10: INTELLECTUAL PROPERTY RIGHTS AND INDEMNIFICATION
10.1 Ownership. Customer retains all right, title and interest in and to all Content. Helin retains all right, title and interest in and to the Helin Products, Implementation Services, Documentation, including all know-how, methodologies, designs and improvements to the foregoing, training, testing material, analyses, designs, documentation, reports, including preparatory or concept materials, and if applicable, Implementation Services deliverables (excluding any Content incorporated into any such Implementation Services deliverables). Helin hereby grants Customer a limited, non-exclusive license, non-transferable, and non-sublicensable right to use any Implementation Services deliverables or work product solely in connection with Customer’s authorized use of the Helin Products and Services.
10.1 Retention of Rights. No right, title or ownership of any proprietary or other rights related to the Helin Products, Hardware or Implementation Services is transferred or sold to Customer or any Authorized User. All intellectual property rights not explicitly granted to Customer are reserved and Helin, its Affiliates, and their respective suppliers or licensors, where applicable, retain all right, title and interest in and to the Helin Products and Services, including all intellectual property rights embodied therein, as well as to all Helin Marks. Customer is not obligated to provide Helin with any suggestions or feedback about the Helin Products or Services, but if Customer elects to do so, Helin may use and modify this feedback for any purpose, including developing and improving the Helin Products and Services, without any liability, time limitation, restriction, or payment to Customer.
10.3 Indemnification.
10.3.1 Helin Indemnity. Helin, at its sole expense, will defend Customer and its directors, officers and employees (each a "Customer Indemnitee") from and against any and all third party claims, and indemnify any Customer Indemnitee from any related damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney fees, costs, penalties, interest and disbursements) that are finally awarded by a court of competent jurisdiction, or included in a settlement approved in advance by Helin, resulting from or arising in connection with a legal action alleging Customer’s use of the Software directly infringes the third party’s patent, copyright, or trademark.
10.3.2 Customer Indemnity. Customer shall defend, indemnify and hold Helin and its directors, managers, officers, employees, agents, resellers, licensors, affiliates, successors and assigns harmless from any damages and costs awarded against Helin as a result of a third party claim arising from or related to: (i) use of the Helin Products by an Authorized Party or use of Content, including any allegation that Helin’s possession, transmission, processing, or use of any the Content infringes upon or misappropriates any third party copyright, trademark, patent, privacy or other rights; (ii) Customer’s failure to comply with any Export Control Laws; (iii) Customer’s negligence in the operation of its business including damages arising from such negligence resulting in the death or disability of a Customer personnel; (iv) .
10.3.3 Knock-for-Knock Indemnity. The parties agree that, for work performed or Hardware delivered at an end customer’s drilling rig, each party will bear responsibility for its own people and property, regardless of fault, and will support this obligation with liability insurance. Helin will not be responsible for any loss, damage, injury, or death suffered by the Customer in connection with the performance or non-performance of the Services or Hardware, even if caused partly or wholly by Helin’s negligence, fault, or breach of duty, and the Customer will indemnify and hold harmless the Helin against all related claims, costs, and liabilities. Likewise, the Customer will not be responsible for any loss, damage, injury, or death suffered by the Helin in connection with the performance or non-performance of the Services or Hardware, even if caused partly or wholly by the Customer’s negligence, fault, or breach of duty, and the Helin will indemnify and hold harmless the Customer against all related claims, costs, and liabilities.
10.3.4 Procedures. Each Party’s indemnification obligation is subject to: (i) prompt notification of a claim in writing to the indemnifying Party; (ii) consent to allow the indemnifying Party to have sole control of the defense and any related settlement negotiations; and (iii) provision of information, authority and assistance as necessary (at the indemnifying Party’s cost and expense) for the defense and settlement of an indemnified claim. The indemnifying Party shall not consent to entry into judgment or enter into any settlement that admits liability of the indemnified Party or provides for injunctive or other non-monetary relief affecting the indemnified Party, without the prior consent of the indemnified Party, which consent shall not be unreasonably withheld.
10.3.5 Exceptions. Helin will have no obligations or liability for any IP Claim arising from or based upon: (i) any unauthorized use, misuse, reproduction or distribution of the Helin Products, including use that is outside the permitted scope of this Agreement; (ii) any modification or alteration of the Helin Products without the prior written approval of Helin; (iii) use of the Helin Products in combination with any other software, hardware, third-party data or other materials not provided by Helin or expressly authorized in the applicable Documentation; (iv) use of a prior version of the Helin Product, if use of a newer version of the Helin Product would have avoided such claim; or (v) any Third-Party Materials.
10.3.6 Remedies. If a Helin Product becomes, or, in Helin’s opinion, is likely to become, the subject of an IP Claim, Helin may, at its option and expense, either: (i) obtain the right for Customer to continue using the Helin Product in accordance with this Agreement; (ii) replace or modify the Helin Product so that it becomes non-infringing while retaining substantially similar functionality; or (iii) if neither of the foregoing remedies can be reasonably provided by Helin, terminate all rights to use the Helin Products (without need for a ruling by a court or arbitrator) and refund as applicable a pro rata portion of unused, prepaid fees.
10.4 Sole And Exclusive Remedy. THIS SECTION 10 STATES HELIN’S SOLE AND ENTIRE OBLIGATION AND LIABILITY, AND CUSTOMER’S AND ITS AFFILIATES’ AND ALL AUTHORIZED USERS’ SOLE AND EXCLUSIVE RIGHT AND REMEDY, FOR ANY CLAIM OF INFRINGEMENT OR ALLEGED VIOLATION OF INTELLECTUAL PROPERTY RIGHTS.
ARTICLE 11: LIMITATION AND LIABILITY
11.1 Limitation of Liability. Except for: (i) each Party’s indemnification obligations under this Agreement (explicitly excluding Section 10.3.3., which is capped for HELIN as per the following 11.1 (ii), (ii) death or bodily injury caused by a Party’s negligence (which shall be limited to EUR 1,250,000); (iii) Customer’s payment obligations; (iv) Customer’s violation of Helin’s intellectual property rights; and (v) Customer’s breach of the use restrictions in Section 2.3, each Party’s maximum, cumulative liability for any claims, losses, costs (including attorney’s fees) and other damages arising under or related to this Agreement, regardless of the form of action, whether in contract, tort (including negligence or strict liability) or otherwise, will be limited to actual damages incurred, and will in no event exceed the fees (excluding Taxes or VAT) paid or payable by Customer for the twelve (12) month period preceding the loss or damages giving rise to the claim and attributable to the specific products or services giving rise to such damages.
11.2 Exclusion of Damages. IN NO EVENT WILL HELIN, ITS AFFILIATES, OR THEIR RESPECTIVE DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS SUPPLIERS OR LICENSORS, BE LIABLE FOR ANY LOSS OF SAVINGS, PROFITS OR REVENUES, LOSS OR CORRUPTION OF DATA, GOODWILL, OR REPUTATION, INACCURACY OF ANY DATA, THE COST OF PROCUREMENT OF SUBSTITUTE HARDWARE, SERVICES OR SOFTWARE, SOFTWARE, MATERIALS, DATA, INFORMATION AND/OR INSTRUCTIONS PROVIDED BY OR ON BEHALF OF THE CUSTOMER WHICH ARE INCOMPLETE, INCORRECT, INACCURATE, ILLEGIBLE OR OTHERWISE DEFECTIVE, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWSOEVER ARISING AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. HELIN PRODUCTS ARE NOT INTENDED FOR USE WITH OR FOR HIGH-RISK ACTIVITIES AND HELIN WILL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM INHERENTLY DANGEROUS USE OF THE HELIN PRODUCTS.
11.3 THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS CONTAINED IN THIS AGREEMENT WILL APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY AGREED REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE EXTENT THAT HELIN MAY NOT, AS A MATTER OF LAW, DISCLAIM ANY WARRANTY OR LIMIT ITS LIABILITIES, THE SCOPE OR DURATION OF SUCH WARRANTY AND THE EXTENT OF HELIN’S LIABILITY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. IF A WAIVER, RIGHT, OR REMEDY IS EXERCISED PURSUANT TO MANDATORY LAW, IT SHALL BE EXERCISED SOLELY FOR THE PURPOSE PROVIDED AND IN CONFORMANCE WITH THE PROCEDURES AND LIMITATIONS EXPRESSLY PROVIDED FOR BY SUCH LAW.
11.4 No Third-Party Beneficiaries. The warranties and other obligations of Helin under this Agreement run only to, and for the sole benefit of Customer and not its Authorized Users. Except as otherwise mandated by applicable law, no person or entity will be considered a third-party beneficiary of this Agreement or otherwise entitled to receive or enforce any rights or remedies in relation to this Agreement.
ARTICLE 12: CONFIDENTIALITY
12. Confidentiality. Each Party shall protect the other Party’s Confidential Information using the same degree of care used to protect its own confidential information, but in no event less than a reasonable degree of care. The receiving Party shall not: (i) use Confidential Information for any purpose outside the scope of this Agreement, or (ii) voluntarily disclose Confidential Information except to employees, contractors and agents as required to perform its obligations under the Agreement. Notwithstanding the foregoing, a Party may disclose the other Party’s Confidential Information to the extent that it is required to be disclosed in accordance with an order or requirement of a court, administrative agency or other governmental body, provided that such Party, to the extent permitted by law, provides the other Party with prompt notice of such order or requirement in order that it may seek a protective order. Each Party’s confidentiality obligations hereunder will continue for a period of three (3) years following any termination of this Agreement, provided, however, that each Party’s obligations will survive and continue in effect thereafter with respect to, and for so long as, any Confidential Information continues to be a trade secret under applicable law. The Parties acknowledge and agree that the Helin Products, Services, and Documentation, and all pricing information shall be the Confidential Information of Helin. Nothing in this Agreement will impair Helin’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any products, software or technologies that Customer may develop, produce, market, or distribute, or to use or share knowledge, experience and skills acquired during the performance of the Services or arising from the Services, or the delivery of Hardware, provided that no such activity shall incorporate or use Customer Confidential Information.
ARTICLE 13: PRIVACY
13.1 Data Security. Helin will use commercially reasonable, industry standard security measures in providing Helin SaaS Services. Helin has implemented commercially reasonable technical and procedural safeguards to protect and secure Customer’s Confidential Information. Helin SaaS Services offerings are hosted and delivered from a data center operated by a third-party provider, which is solely responsible for the underlying infrastructure and hosting of the SaaS Services. Customer is solely responsible for any breach or loss resulting from: (i) Customer’s failure to control user access; (ii) failure to secure Content which Customer transmits to and from the SaaS Services; and (iii) failure to implement appropriate and timely backups, reasonable and appropriate security standards and measures, including encryption technology, to protect against unauthorized access.
13.2 Data Privacy. Helin’s privacy notices and further information regarding Helin’s privacy measures may be found in the Helin DPA. The terms of the Data Processing Addendum, attached hereto as Appendix 2 (“DPA”), shall apply to the extent the Content includes “Customer Personal Data” as defined in the DPA. All Content used by or within Helin SaaS Services may be stored on servers located in various regions, including the EU, and Customer may select (where available) the region in which its Content resides.
13.3 Excluded Data. Customer shall not provide Helin with any Content that is subject to heightened security requirements by law, regulation or contract, examples include but are not limited to the Gramm–Leach–Bliley Act (GLBA), Health Insurance and Portability and Accountability Act (HIPAA), Family Educational Rights and Privacy Act (FERPA), the Child’s Online Privacy Protection Act (COPPA), the standards promulgated by the PCI Security Standards Council (PCI-DSS), and their international equivalents (such Content collectively, “Excluded Data”). Helin shall have no responsibility or liability for Excluded Data.
13.4 The SaaS Services are accessed via the then selected public cloud provider (“Platform”), and the Subscription includes a limited, non-transferable, non-exclusive right for Authorized Users to use and access the Platform solely through, and to the extent required to use the Subscription. Unless otherwise set forth herein, all of Customer’s restrictions and obligations respecting the Subscription apply equally to the Platform. Customer may use the Platform solely as part of the Subscription. Customer may use the Platform solely to use the functionality of the Helin Products in the form it has been provided to Customer by Helin. If Customer’s access to the Services provides Customer with access to any Platform functionality within it that is in excess of the functionality described in the Documentation, Customer agrees to not access or use such functionality. Customer agrees that Customer’s noncompliance with the terms set forth in this paragraph would be a material breach of this Agreement. Access by Customer to the Platform is solely between Customer and the non-Helin provider, and Helin does not warrant or support such non-Helin Products or Services, whether or not they are recommended by Helin or designated by Helin as preferred, certified or otherwise.
ARTICLE 14: TERM AND TERMINATION
14.1 Term. This Agreement is effective upon the earlier of the effective date of the first Ordering Document referencing this Agreement or the date Customer is first provided with access to or use of the Helin Products or Services, and shall remain in effect until expiration or termination of all rights to use any Helin Products or Services. Unless otherwise indicated on an Ordering Document, Helin Product or Services subscriptions shall begin upon the Delivery Date and automatically renew for successive terms equal to the initial subscription period, unless either Party provides prior written notice of non-renewal to the other Party at least forty-five (45) days prior to the end of the then-current subscription period. Subscriptions may not be cancelled in whole or in part during any subscription period. Subscription fees are subject to increase based upon prevailing rates at the time of renewal. Either Party may terminate this Agreement by thirty (30) days’ prior written notice if no Ordering Document is in effect between them.
14.2 Termination for Breach or Insolvency. Either Party may terminate (ontbinden) this Agreement or any applicable Ordering Document, license, or subscription (without resort to court or other legal action) if the other Party fails to cure a material breach within thirty (30) days after written notice of such breach. Helin may terminate the applicable Ordering Document if Helin believes, in its sole reasonable discretion, that any of its partners or subcontractors used to provide Helin Products or Services is impaired due to imposed legal sanctions. Helin may terminate this Agreement immediately upon written notice in the event Customer breaches Section 2.3. Either Party may terminate this Agreement if the other Party terminates or suspends its business without a successor or becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Subject to the provisions of Section 14 of the Agreement, the Customer may not prematurely terminate an agreement entered into for a definite or fixed period or an agreement that ends by fulfilment of the assignment. Article 7:408 sub 1 of the Dutch Civil Code will not apply between the Customer and Helin.
14.3 Effect of Termination. Customer’s rights with respect to Helin Products and Services will end upon termination of this Agreement, or expiration of any applicable Ordering Document, or subscription, including the right to use any code or artifact generated by Helin Products. Upon termination of this Agreement or the right to use any Helin Products or Services, Customer shall immediately cease using the applicable Helin Products and Services and uninstall, delete and destroy all copies of such Helin Products. If Customer uses Helin Products following the end of a purchased subscription period, Customer shall be charged at the prevailing rates for such use. In the event of termination, all amounts payable by Customer to Helin under this Agreement are immediately due and payable. Termination of this Agreement or any licenses or subscriptions shall not prevent either Party from pursuing all available legal remedies, nor shall such termination relieve Customer’s obligation to pay all fees that are owed. All provisions of this Agreement relating to Helin’s ownership of the Helin Products, limitations of liability, disclaimers of warranties, confidentiality, waiver, audit and governing law and jurisdiction, will survive the termination of this Agreement.
14.4 Suspension of Service. Helin may, without limiting its other rights and remedies, suspend Customer’s access to Helin Products at any time if: (i) required by applicable law, including Export Control Laws, (ii) Customer or any Authorized User is in violation of the terms of this Agreement, (iii) Customer’s use disrupts the integrity or operation of Helin SaaS Services or interferes with the use by others; or (iv) Customer fails to make any payment when due. Helin will use reasonable efforts to notify Customer prior to any suspension, unless prohibited by applicable law or court order. Customer will remain responsible for all fees incurred before and during any suspension.
14.5 Delivery of Hardware. Delivery of Hardware between the Parties shall be made on an Ex Works-basis, as defined in Incoterms 2020, unless otherwise agreed in writing. The Customer will accept the Hardware in the condition they are in at the time of Delivery (“as is”), including all visible and hidden errors or defects, following which transfer of risk occurs upon delivery of the pick-up notice (per e-mail) to Customer. This does not affect Helin obligations under the Hardware warranties as displayed in the Helin Hardware Terms. All Hardware delivered to the Customer by Helin remain the property of Helin until the Customer has fully met all payment obligations under the Agreement. If Customer creates a new item (in whole or in part) from Hardware delivered by Helin, the item shall be considered created for the benefit of Helin. The Customer will hold the new item on behalf of Helin until all payment obligations have been fulfilled. Until then, Helin remains the owner of the newly created item. Helin is only required to provide services in relation to the delivered Hardware if, and to the extent that, the Parties have explicitly agreed to such services.
14.6 Guarantee With Regard To Hardware. Helin will make commercially reasonable efforts to repair material or manufacturing defects in goods sold, as well as defects in parts supplied by Helin, that fall within the scope of the guarantee. These defects must be reported to Helin in detail within three (3) months after delivery. Repairs will be carried out within a reasonable period of time. Helin obligations under this article do not apply if the defects are wholly or partly the result of incorrect use, careless or incompetent handling, or external circumstances, by the Customer or any third party, or any other reason beyond Helin’s control. If Helin considers it necessary, in its sole discretion, it may choose to replace the goods instead of repairing them, subject to payment of the then applicable fees.
14.7 Retention of Title. All Hardware delivered to Customer remains the property of Helin or its suppliers until the Customer has paid all amounts owed to Helin under the agreement in full. Any rights granted to the Customer under the Agreement are conditional upon the Customer having paid all amounts owed to Helin in full.
ARTICLE 15: ON PROMISE SOFTWARE
15. On-Premise Software. If the Customer purchases licenses for on-premise Software, Helin grants the Customer the right to install and use the Software on its computers and/or servers strictly for internal business purposes, limited to the platforms and quantities specified in the agreement. The Customer may also make a reasonable number of backup copies for use only if the original copy fails, is lost, or is destroyed, and may install copies in a disaster recovery environment, to be used solely in emergencies when the original Software is unavailable. The Software is licensed, not sold, and the agreement only grants the Customer rights to use the Software as expressly provided, with Helin retaining all other rights. Except where applicable law provides otherwise, the Customer may not circumvent technical protections to exceed the scope of the license, reverse engineer, decompile, or disassemble the Software, make more copies than permitted, publish the Software for others to copy, rent, lease, lend, resell, or use it to provide Software hosting, subscription, ASP, or SaaS services, or use or make the Software available in an automated or robotic manner. The licenses granted are worldwide, non-sublicensable, non-exclusive, non-transferable, and limited to the Software in executable form. Where applicable the restrictions found in Section 2.3 apply to on-premise Software.
ARTICLE 16: PERSONNEL
16. Personnel. Helin will provide personnel with the agreed qualifications and may replace them during the term, while the Customer will provide qualified personnel with sufficient knowledge of its processes, objectives, systems, and related matters needed for performance. If Helin’s personnel require access to the Customer’s or its suppliers’ premises, they will comply with all reasonable rules provided in advance, and the Customer will ensure the premises are safe, legally compliant, and provide suitable workspace as well as any digital or physical access required. Helin may use affiliates or subcontractors without the Customer’s consent but remains responsible for performance. During the agreement and for one (1) year after termination, the Customer may not, directly or indirectly, solicit or hire Helin’s personnel or subcontractors engaged in providing the Services.
ARTICLE 17: GENERAL PROVISIONS
17.1 Verification and Audit. While this Agreement is in effect and for two (2) years after the date of its termination or expiration, upon request by Helin but not more than once per calendar year, Customer shall conduct a self-audit of its use of the Helin Products and Implementation Services and, within ten (10) business days after receipt of such request, submit a written statement to Helin verifying that it is in compliance with the terms and conditions of this Agreement. Helin shall have the right, on its own or through its designated agent or third-party accounting firm, to conduct an audit of Customer’s use and deployment of the Helin Products and Implementation Services and monitor use of Helin SaaS Services, in order to verify compliance with this Agreement. Helin’s written request for an audit will be submitted to Customer at least fifteen (15) days prior to the specified audit date, and such audit shall be conducted during regular business hours and with the goal of minimizing the disruption to Customer’s business. If such audit discloses that Customer is not in material compliance with the terms of this Agreement, then Customer shall be responsible for the reasonable costs of the audit, in addition to any other fees or damages to which Helin may be entitled under this Agreement and applicable law.
17.2 Third-Party Materials. Helin Products may incorporate or otherwise access certain third-party software, data, services, or other materials for the hosting and delivery of the Helin Products, which may be identified in the Documentation (“Third-Party Materials”). Helin represents that if the Helin Products are used in accordance with this Agreement, such use shall not violate any license terms for the Third-Party Materials. Helin makes no other representation, warranty, or other commitment regarding the Third-Party Materials, and hereby disclaims any and all liability relating to Customer’s use thereof.
17.3 Connectivity to Third-Party Applications. Customer’s use of Helin Products to connect or interoperate with or access third-party applications or services may be governed by terms and conditions established by such third party. Third-party application programming interfaces and other third-party applications or services (“Third-Party Applications”) are not managed by Helin, and Helin shall have no liability for connectivity if any Third-Party Applications are changed or discontinued by the respective third parties. Helin does not support, license, control, endorse or otherwise make any representations or warranties regarding any Third-Party Applications.
17.4 Evaluation. If Customer is provided Helin Products for evaluation purposes (“Evaluation Products”), use of the Evaluation Products is only authorized in a non-production environment and for the period limited by the corresponding license key or credentials. If Customer is provided access to an evaluation of Helin SaaS Services, Helin will make the applicable Helin SaaS Services offering available to Customer for its internal business operations on an evaluation basis free of charge until the earlier of: (a) the end of the evaluation period; (b) the start date of any purchased Helin SaaS Services subscription ordered by Customer; or (c) termination by Helin in its sole discretion. ANY CONTENT IN THE SAAS SERVICES, AND ANY CONFIGURATION CHANGES MADE TO THE HELIN SAAS SERVICES BY OR FOR CUSTOMER, DURING AN EVALUATION MAY BE PERMANENTLY LOST UNLESS: (A) CUSTOMER PURCHASES A SUBSCRIPTION FOR SAAS SERVICES OR (B) CUSTOMER EXPORTS SUCH CONTENT BEFORE THE END OF THE EVALUATION PERIOD. Notwithstanding any other provision in this Agreement, the right to use the Evaluation Products is provided “AS IS” without indemnification, Support, service level credits, or warranty of any kind, expressed or implied. In no event will Helin’s maximum cumulative liability for Evaluation Products exceed one hundred EURO (€ 100).
17.5 Early Release Products. Helin may, in its discretion, periodically provide certain Customers with an opportunity to test early release features or functionality in connection with Helin Products. Customer may decline to participate in the testing of such additional features or functionality at any time. Customer acknowledges that such features or functionality are not considered part of the Helin Products under this Agreement, are not supported, are provided “as is” with no warranties of any kind and may be subject to additional terms. Helin reserves the right at any time, in its sole discretion, to discontinue provision of, or to modify, any such features or functionality provided for testing purposes.
17.6 Assignment. Customer may not assign or transfer this Agreement or its rights and obligations hereunder to any third party without the prior written consent of Helin. For purposes of this Section, any change of control of Customer, whether by merger, sale of equity interests or otherwise, will constitute an assignment requiring the prior written consent of Helin. Any attempt by Customer to assign this Agreement or its rights and obligations hereunder in violation of this Section will be null and void. Helin is free to assign or transfer any or all of its rights or obligations under this Agreement at its discretion. All terms of this Agreement will be binding upon, inure to the benefit of, and be enforceable by and against the respective successors and permitted assigns of Helin and Customer. Any attempted assignment made without Helin’s prior express written consent shall be void and a material breach of this Agreement.
17.7 governing Law and Jurisdiction. This Agreement was made in, and this Agreement is governed by the law of the Netherlands, but excluding any conflict of law rules or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded. Any suit, action or proceeding arising out of or relating to this Agreement or the business relationship between the parties, whether based in tort, contract or statutory violation, shall be brought before, and only before, the courts of Rotterdam, the Netherlands. The Parties hereby expressly and irrevocably submit to the exclusive jurisdiction of such courts or for the purpose of any such suit, action or proceeding. Helin may be irreparably harmed by a breach of the terms of this Agreement and damages, alone, may not be an adequate remedy. Customer agrees, in addition to any other rights or remedies permitted under applicable law, Helin will have the right to enforce this Agreement by injunctive or other equitable relief without the need to post a bond or to prove damages or irreparable harm.
TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, CUSTOMER EXPRESSLY WAIVES ANY RIGHT TO A JURY TRIAL REGARDING DISPUTES RELATED TO THIS AGREEMENT.
17.8 Force Majeure. Neither Party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the effective date of this Agreement and which are beyond the reasonable control of the Parties, such as failure of suppliers prescribed by the Customer to properly fulfil their obligations, defectiveness of goods, software or materials or files of third parties the use of which has been required by the Customer, actions, omissions or failure to respond in a timely manner by regulatory or governmental bodies (including but not limited to the implementation of laws or regulations or other governmental acts affecting the provision of the Services), strikes, blockade, war, acts of civil or military authority, terrorism, riots, natural disasters, refusal of license or other acts by any government or other governmental agencies (including the passage of laws, regulations or sanctions which impact the delivery of Helin Products or Services), epidemics or pandemics, failure or diminishment of power, telecommunications or data networks or services, denial-of service attacks or materials shortage in so far as such an event prevents or delays the affected Party from fulfilling its obligations and such Party is not able to prevent or remove the force majeure at reasonable cost (“Force Majeure Event”). If a Force Majeure event continues for more than ninety (90) days either party may terminate the Agreement and any applicable Ordering Document by written notice to the counterparty.
17.9 Internet Performance. The flow of data via the internet depends in large part on the performance of internet services provided or controlled by third parties, which Helin does not and cannot control. The actions or inactions of such third parties can impair or disrupt the internet. Helin will use commercially reasonable efforts to remedy and avoid such events, but cannot guarantee that such events will not occur and disclaims any liability resulting from or relating to such events. CUSTOMER FURTHER ACCEPTS AND UNDERSTANDS THAT THE HELIN PRODUCTS HIGHLY DEPEND ON CUSTOMER’S INTERNET PERFORMANCE AND/OR AVAILAIBLITY. CUSTOMER EXPLICITLY WAIVES ANY AND ALL RIGHTS RELATIVE TO THE CUSTOMER’S INTERNET PERFORMANCE IMPACTING THE HELIN PRODUCTS AND/OR HELIN’S PERFORMANCE UNDER THE PRESENT AGREEMENT, AS PER THE FOLLOWING DOCUMENT: INSERT WAIVER PER LINK.
17.10 Trade Restrictions; Export Regulation. Helin Products and Services are provided subject to the laws and regulations of the United States and other countries on trade restrictions that may prohibit or restrict access by certain persons or from certain countries or territories, including but not limited to sanctions, embargoes and export restraints. The Helin Products may be subject to Export Control Laws. Customer will not directly or indirectly, export, re-export, or release the Software to, or make the Helin Products accessible from, any country, jurisdiction or person to which export, re-export, or release is prohibited by applicable Export Control Laws. Customer will comply with all applicable Export Control Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Helin Products available outside the United States.
17.11 U.S. Government End Users. If applicable, the Software and Documentation provided in Helin Products are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable, and subject to restricted rights as defined in FAR Section 52.227-19 "Commercial Computer Licensed Software - Restricted Rights" and DFARS 227.7202, “Rights in Commercial Computer Licensed Software or Commercial Computer Licensed Software Documentation”, as applicable, and any successor regulations. Any data or other information provided by or on behalf of Helin is not form, fit or function data and is limited rights data and/or restricted computer software as described in the FARS, 48 CFR § 52.227-14 and that the terms of FAR 52.227-14 Rights in Data-General or FAR 52.227-17 Rights in Data – Special Works shall, accordingly, not apply thereto. Any use, modification, reproduction, release, performing, displaying or disclosing of the Helin Products and Documentation by the U.S. Government shall be governed solely by the terms and conditions of this Agreement.
17.12 Notices. All notices by Customer to Helin must be in writing and delivered to Helin: (a) by certified or registered mail or by an internationally recognized express courier addressed to Helin at Patrijsweg 48, 2289 EX Rijswijk, The Netherlands, Attention: Legal Department, or (b) by email to sales@helindata.com. Unless otherwise specified in writing by Customer, all notices to Customer shall be sent to the address or email provided to Helin.
17.13 Relationship between the Parties. The Parties are independent contractors. Nothing in this Agreement will be construed to create an agency, joint venture, partnership, fiduciary relationship, joint venture or similar relationship between the Parties.
17.14 No Waiver. No term of this Agreement will be deemed waived and no breach excused unless such waiver or excuse shall be in writing and signed by the Party issuing the same. Neither this Agreement nor any Ordering Document shall be dependent on Customer issuing a purchase order. Customer acknowledges that any purchase order is for its administrative convenience only and that Helin has the right to issue an invoice and collect payment without a corresponding purchase order. Any additional or conflicting terms or conditions in any purchase order shall have no legal force or effect.
17.15 Limitation. Subject to applicable law, no action, regardless of form, arising out of this Agreement may be brought by Customer more than two (2) years after the cause of action arose.
17.16 Entire Agreement; Severability; Language. This Agreement, any attachments hereto or documents referenced in the Agreement, along with all Ordering Documents, are the complete statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications pertaining to the subject matter of this Agreement. This Agreement may not be modified except in writing and signed by both Parties. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement will otherwise remain in force and effect. In the event of any conflicts or inconsistencies, the Agreement shall take precedence over the Ordering Document, but only with respect to the specific subject matter of each. For the avoidance of doubt, where an Ordering Document includes additional and more specific terms and conditions with respect to a concept addressed generally in this Agreement or does not address a concept addressed herein, no conflict shall be deemed to exist. Customer click-through terms (e.g. those found in invoice submission portals), preprinted terms in Customer purchase orders, or other customer-generated ordering documents, or terms referenced or linked within them, will have no effect on this Agreement and are hereby rejected, regardless of whether they are signed by Helin and/or purport to take precedence over this Agreement. The English language version of this Agreement shall be the governing version used when interpreting or construing this Agreement.
17.17 Construction. For purposes of this Agreement: (i) the words “include,” "includes" and "including" are deemed to be followed by the words "without limitation"; (ii) the word "or" is not exclusive; and (iii) words denoting the singular have a comparable meaning when used in the plural, and vice-versa. A Party’s role in drafting this Agreement shall not be a basis for construing this Agreement in any manner against such Party. Any Helin Ordering Document and the schedules and exhibits attached thereto are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
17.17 Publicity. Customer hereby grants Helin the right to use Customer Marks in order to list Customer as a customer of Helin along with other customers in marketing materials such as the Helin website, customer-facing presentations and press releases.