June 2024 –Azure Marketplace and AppSource Marketplace Programs License Agreement
These are the Terms and Conditions that govern this Agreement.
Definitions
Unless defined elsewhere in this Agreement, capitalized terms used in this Agreement shall have the meanings ascribed to them below:
“Affiliate” means any legal entity that controls, is controlled by, or is under common control with a party
“Academic Year” means the period from the begging of an academic year as ascertained by the respective academic authority of each country where the Programs shall be used by the Customer and/or End User and in case a country does not prescribe the academic year shall mean from the first Monday of September of the Agreement year until the last Friday of June of the year succeeding the year of the signature of this Agreement
“Agreement” means the Customer’s Order of Offerings published on Azure Marketplace and AppSource Marketplace
“Customer data” means all data, including all text, sound, software, image or video files that are provided to Publisher or its Affiliates by, or on behalf of, Customer and its Affiliates through use of the Offering
“Customer” means the legal entity or individual that is contractually or otherwise connected by a legal relationship (i.e. student with a school) to the End User and that places one or more Orders for the Offerings published on Azure Marketplace and AppSource Marketplace if separate and different from the End User
“End User” means the actual individual that shall Use any Program
“Offering” means all services, websites (including hosting), solutions, platforms, and products identified in an Order and that Publisher makes available under or in relation to this Agreement, including the software, equipment, technology, and services necessary for Publisher to provide the foregoing. For this Agreement the Offering means any Program that any Customer and/or End User may order on Azure Marketplace and AppSource Marketplace
“Order” means an ordering document used to transact the Offering via the Marketplace
“Program” is the final result of any Customer and/or End User Use of Stemi LAB for the creation of an Educational program that forms a teaching unit that can serve as a tool for an official national education curriculum and/or a non-official curriculum of an education institution that holds all the parts required for a functional teaching aid, that includes, inter alia, tracking, reporting, grading, automatization of the educational subject, ready to be published on Azure Marketplace and AppSource Marketplace
“Stemi LAB” is a STEMI proprietary modular cloud computer program, a Learning Management System (LMS), that enables the creation, building, administration, documentation, tracking, reporting, grading, automatization and publication of educational programs, for elementary and high school students
“STEMI” means STEMI LLC, a limited liability company incorporated under the laws of the Republic of Croatia having its registered seat in Rijeka, Radmile Matejčić 10, Croatia entered into the company register of the Commercial Court in Rijeka under registration number (MBS) 040364942, PIN/(VATnr.): (HR)91713184849 (hereinafter also referred as: the “Licensor” or the “Service Provider” or the “Company”)
“Use” means to run, access, display, use or otherwise interact with
License
With this Agreement STEMI grants to the Customer and/or End User a subscription-based, non-exclusive, non-transferable, limited license to Use any Program published on Azure Marketplace and AppSource Marketplace under the terms and conditions of this Agreement.
The Customer and/or End User acknowledges that Microsoft is not party to this Agreement, nor in any way responsible for any of the parties’ actions or obligations. Microsoft’s relationship with the Customer and/or End User and STEMI is solely governed by its Microsoft’s respective agreements.
These Terms and Conditions constitute a legally binding agreement made between the Customer and/or End User and STEMI.
The Customer and/or End User agree that by using any Program published on Azure Marketplace and AppSource Marketplace, you have read, understood, and agree to be bound by the terms and conditions of this Agreement.
STEMI hereby warrants, it has obtained and/or has the right to sublicence or grant license rights and/or to publish any Programs of any third party Programs that have been built on Stemi LAB and have been/or are to be published on Azure Marketplace and AppSource Marketplace.
Agreement term, renewal and termination
The license granted under this Agreement shall commence on the date of Order and shall terminate on the elapse of the Academic Year it was ordered unless terminated earlier by agreement of the Parties.
Any infringement of any provision of this Agreement shall give the other party the right to termination and arising damage compensation, provided that the infringing party has been given a term of 15 days to rectify the infringement and/or any financial consequences arising from such infringement.
Pricing and payments
This license is granted as a yearly subscription per End User. For the purpose of this agreement, yearly shall mean the duration of an Academic Year.
The price and payment shall be invoiced and charged as set in the Offering.
Customer/End User relationship
If the Customer and the End User are not the same person, the Customer may Order as many licenses for its End Users in which case the Customer will control access to and use of the Offerings by End Users and is responsible for any Use of the Offerings that does not comply with this Agreement.
Intellectual Property
All intellectual rights that arise in the Use of any Program published on Azure Marketplace and AppSource Marketplace or third party software or Customer data available through the Programs shall be respected regardless of the fact that these rights may be rights of STEMI, the Customer and/or End User or any other third party. Unauthorized and unlawful use, copy or distribution of any such intellectual property shall mean an infringement of this agreement with a right of STEMI to terminate this Agreement and seek damages.
For the purpose of this clause, infringement of Intellectual Property means, but is not limited to, any hosting (except as agreed with STEMI), transfer of license or sublicense, deciphering, decompiling, disassembling, reverse assembling, modifying, translating, reverse engineering or otherwise attempting to derive source code, algorithms, tags, specifications, architecture, structure or other elements of STEMI proprietary software and or STEMI or other third party Programs, in whole or in part, write or develop any derivative works, modify, adapt, translate, disclose or publish, contrary to this Agreement or otherwise authorized by STEMI or any third party. The same shall apply to any Customer Data.
Confidentiality
All Programs and Customer Data are confidential meaning that all persons with access may not disclose any content to unauthorized persons. Any and all Programs and Customer Data shall be Used for its intended purposes only, otherwise such use shall be deemed as infringement of this confidentiality clause. Any infringement of confidentiality shall be regarded as an infringement of this Agreement granting the right to STEMI to terminate this Agreement and seek damages. Any terms and conditions of this agreement that assign passwords or other means of access to confidential content shall be personal, meaning that any sharing, transfer or other kind of access or use enabling to third unauthorized persons shall be regarded as confidentiality infringement as described under this article of the Agreement with the respective legal consequence of termination and damage compensation rights.
Embedded applications rights and obligations
Any embedded computer applications/computer programs (software) of third parties shall be subject to the terms and conditions of use of any such third party software developer/owner and any Customer and/or End User shall be under direct agreement with any such third party software developer/owner. Should it so happen that despite this provision the third-party software developer/owner shall successfully claim any money from STEMI and shall successfully pursue any such claim, any Customer and/or End User that has caused such payment by STEMI to any third party shall hold STEMI harmless and shall indemnify STEMI in full any amounts paid to any such third party.
Liability
Any Customer Data created by the Customer and/or the End User during the Use of a Programs is proprietary to the Customer and his intellectual property and STEMI is not liable for any unlawful content, intellectual property infringement or other damages that might arise subject to the condition that the Customer is clearly labeled, marked or in any other way such information is made available to the Customer Data user.
In the event that STEMI shall be found liable for any Customer Data created by a Customer and/or End User, such Customer and/or End User shall support and help STEMI in the defense from any such allegations, provide any and all documents and statements in the defense of any damage compensation claims and shall in any case hold STEMI harmless and shall indemnify STEMI of any damages, fines or other financial burden incurred.
Privacy
In the Use of Programs, STEMI does not store, process or any manner use any personal information that may arise from the use of the Programs to the extend it would fall under the regulation of the EU GDPR Regulation and/or Swiss data protection laws or any other USA or other country privacy laws.
Amendments
This Agreement may be changed by STEMI from time to time. Unless agreed otherwise STEMI is entitled to change this Agreement as STEMI sees fit and the continued use of any Programs shall mean the acceptance of any such amendments.
Applicable Law and Dispute Resolution
This Agreement and all non-contractual obligations arising from or connected with it are governed by the laws of the Republic of Croatia.
All Disputes shall be referred to, exclusively and finally resolved by arbitration before the Permanent Arbitration Court at the Croatian Chamber of Commerce in accordance with the Zagreb Rules (Rules of Arbitration of the Permanent Arbitration Court at the Croatian Chamber of Commerce) in effect on the date of this Agreement. The seat and place of arbitration shall be Zagreb, Croatia. Unless otherwise agreed by the Parties such arbitration shall be conducted by three arbitrators, one to be appointed by each Party, and the third arbitrator appointed by the arbitrators so appointed within thirty (30) Days after the appointment of the second arbitrator in accordance with the said Arbitration Rules. Judgment upon the award rendered by the arbitral tribunal shall be final, binding and unappealable and may be entered in any court having jurisdiction. A Dispute shall be deemed to have arisen when either Party notifies the other Party in writing to that effect. The arbitration proceedings shall be conducted in the Croatian language.