Terms and Conditions of Sale of Products and Provision of Services
1.1 For the purposes of these Terms and Conditions of Sale of Products and Provision of Services (the “Terms and Conditions”), the terms below will have the following meaning:
– Confidential Information: the Contract, all information pertaining or relating to CounterCraft that is transferred or revealed to the Supplier and/or the Purchaser, or was transferred or revealed prior to the signing of the Contract (be it by written, oral, visual, or any other method or form of access, including without limitation use or access of Countercraft’s Products or Services), as well as information that the Supplier and/or the Purchaser has or has had access to or knowledge of prior to signing the Contract (be it by written, oral, visual, or any other method or form of access, including without limitation use or access of CounterCraft’s Products or Services), both directly or indirectly. This includes, without limitation, analyses, formulas, collections, reports, forecasts, studies, research, projects, knowledge, procedures, processes, any code, source code, binaries of any kind, compiled or pre-compiled code, scripts, or configurations, quotations, technological, technical, financial, commercial, business or economic data and information, “know-how”, industrial and intellectual property, R&D, paperwork, requests, teams, operating methods, and the like, as well as any other information that contains or reflects information, opinions, or interests. Likewise, it includes all information that is marked as confidential when submitted to the Supplier and/or the Purchaser, or information deduced as confidential due to the nature of the information itself or the circumstances that surround the revelation. If there are any doubts regarding the confidential nature of certain information, it must be handled as confidential until CounterCraft makes a decision on its status.
– CounterCraft: all the entities that make up the CounterCraft group, namely, CounterCraft, S.L., CounterCraft Security Inc., and CounterCraft Ltd., or, when required by the context, the relevant CounterCraft entity having entered into the Contract.
– Products: the CounterCraft product/s set forth in the Contract.
– Services: the installation, deployment, use case and campaign design, operation, monitoring, training (including, without limitation, the maximum number of seats) and/or support services to be provided by CounterCraft to Supplier and/or Purchaser if and as expressly included in the Contract.
2.1 The non-exclusive, non-transferable (whether by assignment, law, or otherwise), non-sublicensable, single and company-specific limited-term license to access, install and deploy (if applicable) and use of the Products and/or the implementation and provision, fully or in part, of the Services by CounterCraft directly to its distributors (each of them, the “Supplier”) and/or directly or indirectly -through the Supplier- in favour of the end user (the “Purchaser”).
2.2 Unless otherwise expressly stated in the Contract, hardware and/or third-party software licensing are not included.
3. Formation of contract
3.1 Any purchase order sent to CounterCraft by the Supplier or the Purchaser, or to the Supplier by the Purchaser, shall be accepted entirely at the discretion of CounterCraft or the Supplier, respectively, and, if so accepted, will only be accepted upon these Terms and Conditions (the “Acceptance”). For the avoidance of doubt, any license to access, install and deploy (if applicable) and use of the Products and/or the implementation and provision of the Services by any CounterCraft’s Supplier to a Purchaser shall include these Terms and Conditions.
3.2 Likewise, Acceptance will occur when the Supplier or the Purchaser (i) countersigns the commercial offer sent by CounterCraft or the Supplier, within the term and requirements specified in that offer, or (ii) makes any payment for the relevant Products and/or Services, which (i) or (ii) will entail the entire acceptance of these Terms and Conditions. For the purposes of these Terms and Conditions, ‘commercial offer’ shall mean any offer or proposal made by CounterCraft to the Supplier or the Purchaser, or made by the Supplier to the Purchaser, whether for consideration or free of charge, in relation to the Products and/or Services, including without limitation demos and proofs of concept.
3.3 Each purchase order or commercial offer, which are so accepted as per Conditions 3.1 and 3.2 above, shall constitute an individual legally binding contract between CounterCraft and the Supplier or the Purchaser, as the case may be, or between the Supplier and the Purchaser (the “Contract”). Accordingly, these Terms and Conditions are an essential and inseparable part of the Contract.
3.4 No purchase order which has been accepted by CounterCraft, as well as no commercial offer sent by CounterCraft which has been accepted by the Supplier or the Purchaser, may be cancelled except within the agreement in writing of CounterCraft, and on terms that either the Supplier or the Purchaser, as the case may be, shall indemnify CounterCraft in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses, incurred by CounterCraft or wasted as a result of cancellation.
3.5 These Terms and Conditions shall override any contrary, different or additional terms or conditions (if any) contained on or referred to in a purchase order form or other documents or correspondence from the Supplier and/or the Purchaser, and no addition, alteration or substitution of these Terms and Conditions will bind CounterCraft or form part of any Contract, unless they are expressly accepted in writing by a person authorised to sign on CounterCraft’s behalf.
4.1 The CounterCraft Products, as well as the Services implemented or provided by CounterCraft, either directly or indirectly, shall be in accordance with (i) the current edition of the relevant features or specifications of the Products and Services, if and as published from time to time by CounterCraft (copies of which shall be available from the Supplier upon request) and (ii) those further specifications or characteristics (if any) expressly listed or set out on the Contract (the “Specifications”). In the case of any conflict between (i) and (ii), (ii) shall override (i). No other specification, characteristic, descriptive material, written or oral representation, correspondence or statement, promotional or sales literature, shall form part of or be incorporated by reference into the Contract.
4.2 Any typographical, clerical, or other error or omission in any sales literature, quotation, price list, offer, acceptance of offer, invoice or other document or information issued by CounterCraft, including without limitation the Contract, shall be subject to correction without any liability on the part of CounterCraft.
4.3 CounterCraft reserves the right to make any changes in the Specifications and, in general, in the Products or Services.
5. Use of the CounterCraft products and services
5.1 The access and ability to effectively use the Products and Services is conditioned on the procurement by the Supplier or the Purchaser, at their expense, of all necessary system, hardware, software, operating environment, connectivity, network access and any other applications required to it. The Supplier and/or the Purchaser, as the case may be, shall indemnify CounterCraft against any and all liabilities, claims and costs incurred by or made against CounterCraft as a direct or indirect result of developing or carrying out of any work required to be done on or to the Products, as well as in the implementation and provision of the Services, in accordance with the requirements or specifications of the Supplier or the Purchaser.
5.2 The Products and Services are for the exclusive internal or personal use of the Supplier and/or the Purchaser, in support of their business operations, or mission in the case of public or governmental agencies, and not for the benefit of any third party. The Supplier and the Purchaser shall exercise the rights granted in these Terms and Conditions and in the Contract solely via its own employees.
5.3 Supplier and Purchaser shall not (i) access content, data, information or materials not intended for the Supplier or the Purchaser, or logging onto a server or account that the Supplier or the Purchaser are not authorised to access, in accordance with the Contract; (ii) copy the Products and/or, as the case may be, the Services; (iii) distribute to or share use of the Products and/or the Services or their functionality with any third party, unless the relevant distribution contract has been executed with CounterCraft; (iv) modify or create derivative works of the CounterCraft Products and/or Services; (v) use the CounterCraft Products and/or the Services in a manner that is likely to be prohibited by these Terms and Conditions, the Contract or law, or violative of third-party rights in any applicable jurisdiction; (vi) use, enable or permit the use of the CounterCraft Products and/or the Services to store or transmit infringing, libelous, offensive or otherwise unlawful or tortious material or data or in violation of privacy rights, or to transmit malicious codes, viruses, time bombs, trojan horses, or similar mechanisms, scripts, agents, bots or programs; (vii) use or access the CounterCraft Products and/or the Services (a) if the Purchaser is a direct competitor of CounterCraft or operating on behalf of such a direct competitor; or (b) for purposes of monitoring availability, performance or functionality of the CounterCraft Products and/or the Services, or for any other benchmarking or competitive purposes; and (viii) attempt to, reverse-engineer, modify, decompile, disassemble or otherwise attempt to derive the source code, interfaces or other information from the CounterCraft Products and the Services, or work around technical protections or limitations associated with the CounterCraft Products and the Services.
6. Prices and payment
6.1 Prices are non-refundable and non-cancellable. Unless otherwise agreed in writing by CounterCraft, prices are net prices and do not include Value Added Tax (VAT), which shall be payable by the Supplier or the Purchaser, as the case may be, or any other taxes, duties or fees, which shall be subsequently charged on the invoice. The invoices may be sent to the Supplier or the Purchaser via email, to the email address provided by them for that purpose.
6.2 In the event that the prices have been quoted in a currency other than the Euro, the variation of the parity that the currency experiences with respect to the Euro from the date of the Contract to the contractual dates of invoicing, CounterCraft reserves the right to adjust the corresponding sales price.
6.3 Unless otherwise stated in the Contract, the Supplier or the Purchaser shall pay the 100% of the price agreed in the Contract within thirty (30) calendar days of the date of CounterCraft’s invoice, which shall be issued upon the Acceptance and thereafter upon each Contract renewal, if any. If the Supplier or the Purchaser fails to make the payment before or on the due date, CounterCraft shall be entitled to (i) charge interest accruing monthly on the amount unpaid at the reference rate set out by the applicable legislation on combating late payment in commercial transactions, calculated on the basis of the unpaid amount claimed by CounterCraft, from the thirtieth (30th) calendar day after the relevant invoice until payment in full is made (a part month being treated as a full month for the purpose of calculating interest) and/or (ii) cancel the Contract, revoke the licence of the Products, or suspend any further implementations and provisions of the Services to the Supplier or the Purchaser, and to recover damages as a result of the cancellation, revocation or suspension.
6.4 CounterCraft shall be entitled to temporally revoke the licence of the Products, suspend further provisions of the Services wholly or in part and/or to terminate the Contract and any other contract then subsisting between the parties without prejudice to any other rights of CounterCraft if (i) the Supplier or the Purchaser fails to make any payment when it becomes due or are in breach of any terms of the Contract or any other contract with CounterCraft; (ii) the Supplier or the Purchaser enters into any composition or arrangement with creditors; (iii) the Supplier or the Purchaser has a receiver, administrative receiver or administrator appointed or shall enter into liquidation; (iv) CounterCraft has grounds to believe that the Supplier or the Purchaser may be unable to pay the sums due under the Contract; or (v) CounterCraft is unable to perform the Contract by reason of any cause within Condition 7 (Force majeure) below. To these purposes, the termination of the Contract between CounterCraft and the Supplier shall entail the automatic termination of the Contract between the Supplier and the Purchaser. CounterCraft shall not be liable for any direct or indirect damages caused to the Purchaser by the termination of the Contract between the Supplier and the Purchaser, if such termination is for cause directly or indirectly attributable to the Supplier (e.g., the termination of the Contract between CounterCraft and the Supplier).
7. Force majeure
7.1 CounterCraft shall not be under any liability for any failure to perform any of its obligations under the Contract due to Force Majeure. Following notification by CounterCraft to the Supplier or the Purchaser of such cause, CounterCraft shall be allowed a reasonable extension of time for the performance of its obligations.
7.2 In these Terms and Conditions, “Force Majeure” means any cause beyond the reasonable control of CounterCraft including, without limitation, Act of God, explosion, flood, tempest, fire, war or threat of war, terrorism, sabotage, rebellion, civil disturbance or legislation or measures of any kind by any governmental, parliamentary, local or supranational authority, lock-outs, industrial action or disputes (whether involving employees of the Supplier or a third party), power, IT equipment or internet failures or breakdowns, accidents.
8. Term and other obligations
8.1 The Contract will have the term expressly set out therein.
8.2 The Supplier and the Purchaser undertake that, during the term of the Contract and for a period of two (2) years as of its expiration or termination, they may not, either directly or indirectly (particularly through any mediator, related party, entity, intermediary, agency or otherwise), approach a person who is an employee of CounterCraft for recruitment purposes.
9. Guarantee and limitation of liability
9.1 The CounterCraft Products are supplied ‘as is’, and CounterCraft expressly disclaims all warranties, express or implied, legal or of any other type, among others, those of merchantability and aptitude or suitability for a specific purpose, and warranties as to accuracy, completeness or adequacy of the Products and the Services. Specifically, CounterCraft does not warrant that (i) the Products and the Services will meet the requirements, goals or needs of the Supplier or the Purchaser, (ii) access to Products and Services will be uninterrupted, timely, secure or error-free, or (iii) any errors or deficiencies in the Products and the Services will be corrected.
9.2 Any samples, illustrations or descriptive material including, but not limited to, information contained in the CounterCraft’s or its Suppliers’ or agents’ brochures, advertising material or elsewhere shall be treated as approximate and for guidance only. The Supplier or the Purchaser shall not rely on them and CounterCraft shall not be liable for their accuracy. CounterCraft shall not be liable for gratuitous advice given whether in relation to the licence of the Products, the implementation and provision of the Services, or otherwise.
9.3 In respect of any goods supplied to CounterCraft by third parties or services performed by third parties as sub-contractors to CounterCraft, CounterCraft will pass on to the Supplier and/or to Purchaser (in so far as is able to) the benefit of any warranty given to CounterCraft by such third parties and will (on request) supply to the Supplier and/or the Purchaser details of the terms and conditions of such warranty and copies of any relevant product information sheets or product leaflets issued by such third parties and the Supplier and the Purchaser shall be solely responsible to the entire exclusion of CounterCraft for complying with all of these.
9.4 Notwithstanding any other provision of these Terms and Conditions, CounterCraft’s maximum cumulative aggregate liability for all claims, liabilities or obligations arising under or relating to these Terms and Conditions, the Contract or any other agreement regarding the licence of the Products and the implementation and provision of the Services, regardless of the number of claims or the theory of liability, whether for breaches of these Terms and Conditions and/or the Contract, including breach of warranty, or in tort or otherwise, shall not exceed all amounts paid within the framework of the Contract during the twelve (12) month-period preceding the occurrence of the claim or event giving rise to liability.
9.5 CounterCraft shall not be liable for any indirect, punitive, special, incidental or consequential damages, or liable for interruption of business, diminution of value, cost of replacement, downtime, loss of profits, revenue, use, data or other economic advantages, in connection with, related to or arising out these Terms and Conditions, the Contract or any other agreement regarding the granting of the Products and the installation,deployment and provision of the Services, regardless of the theory of liability, whether for breach of these Terms and Conditions and/or the Contract, including breach of warranty, or in tort or otherwise, even if CounterCraft has been previously advised of the possibility of such damages.
9.6 Liability for damages will be limited and excluded as set forth in this Condition 9, regardless of the validity or efficacy of any remedy provided herein and even if any remedy fails of its essential purpose. The provisions of this Condition 9 allocate the risks under these Terms and Conditions and/or the Contract between the parties and each party has relied upon the limitations set forth herein in determining whether to enter into this relationship. The parties have voluntarily agreed to define the parties’ rights, liabilities and obligations respecting these Terms and Conditions, the Contract or any other agreement regarding the licence of the Products and the implementation and provision of the Services, exclusively in contract pursuant to these Terms and Conditions, and each party expressly disclaims that such party is owed any duties or are entitled to any remedies not expressly set forth in these Terms and Conditions. The foregoing limitations and exclusions apply to the maximum extent permitted by applicable law.
10.1 The content of this Condition shall be applicable in the event that the Supplier or the Purchaser has not entered into a Non-Disclosure Agreement with CounterCraft. Likewise, in the event that the Supplier or the Purchaser enters into a Non-Disclosure Agreement with CounterCraft after the entry into force of these Terms and Conditions, the Non-Disclosure Agreement shall prevail over this Condition.
10.2 The Supplier and the Purchaser shall (i) keep the Confidential Information under the highest level of secrecy and confidentiality; (ii) not transfer nor reveal the Confidential Information, partially or in its entirety, directly or indirectly, at any time and in any manner, to any third party, be it an individual, legal entity, or body without legal status that are those other than its personnel determined in following section (iii); (iii) restrict knowledge of Confidential Information only to those individuals among its personnel that must have access thereto, agreeing to transfer a nominal list of said personnel to CounterCraft if it so requires, along with the functions, responsibilities, and qualification held by each; (iv) subject the personnel mentioned in the previous section (iii) to a confidentiality provision or agreement with terms similar to these Conditions prior to being exposed or having access to Confidential Information; (v) not use Confidential Information, directly or indirectly, for purposes other than those set forth in the Contract, and in no case may it be used in order to obtain personal benefit of any kind, even if this implies no loss to CounterCraft; (vi) not, directly or indirectly, reverse engineer the Confidential Information, nor decompile or dissemble it in any way whatsoever; and (vii) adopt means that are adequate for keeping the Confidential Information secret, as well as copies that may be made thereof, and to keep Confidential Information and all possible copies in a location equipped with appropriate protection and security measures. Said measures must be adapted to the maximum level of diligence that the Supplier and the Purchaser use to protect the confidentiality of their own information whose content is similar. Protection should not be less than the level of diligence of a reasonable businessperson.
10.3 The Supplier and the Purchaser are expressly required to (i) not conduct any software design and/or development activities, either internally or through third parties, that involve a copy or reproduction of CounterCraft’s technology (including, without limitation, CounterCraft’s Confidential Information); (ii) not use Confidential Information, directly or indirectly, to develop or facilitate the development, internally or through third parties, a cybersecurity product that competes directly with the solution marketed by CounterCraft.
10.4 In case of termination or expiration of the Contract, regardless of the cause or without cause, and within seven (7) calendar days following the expiration or termination date, the Supplier or the Purchaser shall return or destroy, at CounterCraft’s discretion, all Confidential Information and all copies thereof to CounterCraft, this being all Confidential Information belonging to CounterCraft that it had divulged or transferred in any format. If this information must be destroyed, this must be carried out, where applicable, in the presence of an authorised CounterCraft’s representative. In addition, the Supplier and the Purchaser shall certify to CounterCraft in writing that the Confidential Information has been returned and/or destroyed, depending on the case.
10.5 The obligations of confidence contained in this Condition shall not apply to any information (i) the Supplier or the Purchaser already had knowledge of prior to the Contract being signed, as long as the Supplier or the Purchaser can irrefutably substantiate this circumstance; (ii) is public domain, unless said circumstance arises as a result of an action or omission by the Supplier or the Purchaser or its personnel (e.g. directors, advisors, employees, and representatives); or (iii) has been requested, under applicable law, by a competent authority or by judges or courts, in which case the Supplier or the Purchaser must provide CounterCraft with prior written notice as soon as possible, if the law permits, attaching a copy of the relevant documents and information so that CounterCraft can protect its rights properly. In this event, the Supplier and/or the Purchaser will determine the content that is legally necessary to divulge, unless the content is determined by demand of the corresponding authorities, judges or courts.
10.6 The obligations of confidence contained in this Condition shall be in effect (i) as long as the Confidential Information does not become part of the public domain through no act or omission of the Supplier and/or the Purchaser, or (ii) until the expiration of a period of five (5) years following the expiration or termination for whatever cause or without cause of the Contract, whichever (i) or (ii) is longer.
11. Intellectual and industrial property rights
11.1 CounterCraft retains all right, title and interest in the Products’ and Services’ intellectual and industrial property rights and those related to all copies, preparatory documentation, updates, technical documentation, user manuals and programs that are subject of the Contract, including without limitation the Confidential Information. The structure, sequence, organization and code of the Products and the Services constitute CounterCraft’s valuable trade secrets and copyrighted confidential information. The Supplier and/or the Purchaser shall preserve and not suppress CounterCraft’s proprietary notices, markings and branding associated with or displayed via the use of the Products and the Services. In this regard, the Contract does not entail the transfer in favour of the Supplier and/or the Purchaser of any right, title and interest in CounterCraft’s intellectual and industrial property rights.
11.2 The Supplier and/or the Purchaser may not alter, modify, cover and/or eliminate in any way, any copyright warning, brand and intellectual and industrial property (including, without limitation, logos, certification labels or serial numbers), that may be included in the Products and/or the Services, nor, in general, perform modifications on the Products and/or the Services. In particular, it is not authorised to modify, remove nor cover the logo with the CounterCraft name, the certification label nor the serial numbers.
11.3 CounterCraft authorises the Supplier and/or the Purchaser to use the brands, logos, commercial names and registered trademarks that are the property of the former in any activity related to the subject and within the scope of the Contract. This faculty for the Supplier and/or the Purchaser shall be carried out under the indications and prior written approval by CounterCraft, while their use is prohibited when it is not in application of the activities contemplated in the Contract.
12. Anti-corruption clause
12.1 The Supplier and/or the Purchaser hereby represent, warrant and covenant that (i) the Supplier and/or the Purchaser and any of their controlling entities or persons, affiliates, partners, officers, directors, employees and agents involved in the execution of the Contract, will comply at all times in connection with and throughout the course of the Contract, with all applicable laws, statutes, regulations and codes relating to combating corruption; (ii) in connection with the Contract, neither the Supplier and/or the Purchaser nor any of their controlling entities or persons, affiliates, partners, officers, directors, employees or agents will offer, promise or give, nor have they, as at the effective date, offered, promised, or given money or anything of value, directly or indirectly, to (a) any Government Official in order to influence official action or otherwise obtain an improper advantage; (b) any other person while knowing that all or any portion of the money or thing of value will be offered or given to a Government Official in order to influence official action or otherwise obtain an improper advantage; or (c) any other person in order to induce him or her to act disloyally or otherwise improperly; and (iii) promptly report to CounterCraft any violation of any of their obligations under paragraphs (i) and (ii) of this Condition. In such event, CounterCraft reserves the right to require that the Supplier and/or the Purchaser immediately take appropriate remedial actions.
12.2 To the extent permitted by law, the Supplier and/or the Purchaser shall indemnify and hold CounterCraft harmless from and against any and all claims, damages, losses, penalties, costs (including but not limited to legal fees) and expenses arising from or related to any breach by the Supplier and/or the Purchaser of their obligations under this Condition.
13.1 The Contract shall be considered a contract made in Spain and shall be governed in all respects by the law of Spain and the parties agree to submit to the exclusive jurisdiction of Donostia-San Sebastián (Gipuzkoa, Spain).
13.2 Any notice to be given hereunder shall be in writing or by some secure form of electronic transmission and addressed to that other party at its address specified in the Contract.
13.3 No waiver by CounterCraft of any breach of the Contract by the Supplier and/or the Purchaser shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.4 If any provision (or part of a provision) in these Terms and Conditions or any contract is invalid or unenforceable to any extent or for any purpose, this shall not affect its validity or enforceability for other purposes or the remaining provisions (or the rest of the provision in question); but it shall be deemed to be severed to that extent for that purpose.
13.5 Neither the Uniform Laws on International Sales nor the Convention on Contracts for the International Sale of Goods shall apply to the Contract.