1.1. The current terms and conditions of planck security s.a. (the “Planck Security Terms and Conditions” or "PSTC") apply to all contracts and Quotes (as defined hereafter) relating to the use of the Licensed Software (as defined hereafter) between planck security s.a., a company organized and existing under the laws of Luxemburg, with registered office at 24, rue Leon Kauffman, Luxemburg (Luxemburg), registered under VAT-number LU27889255 (“Planck Security”) and the customer indicated in the Quote (the “Customer”), except when special agreements between Planck Security and the Customer stipulate otherwise.
1.2. The Planck Security Terms and Conditions are deemed accepted by the Customer, even when they conflict with the Customer’s general or special purchasing terms and conditions. The fact that Planck Security did not explicitly reject the terms and conditions of the Customer referred to in any contract or Quote cannot be interpreted by the Customer as an acceptance by Planck Security of such terms and conditions.
1.3. In the event of any conflict between the Planck Security Terms and Conditions and any Quote (as defined hereafter), the Quote will prevail, and the conflicting terms in the Customer’s documents are hereby rejected by Planck Security.
1.4. The designated person, officer, director, employee, or any other person who represents or acts on behalf of the Customer, is deemed to have the necessary mandate to legally bind the Customer.
2.1. In addition to terms defined elsewhere in these PSTC, the following capitalized terms and expressions will have the following meanings, unless the context otherwise requires:
“Affiliate” means an affiliate within the meaning of Article 336 of the Luxembourg Companies Act;
“Agreement” means these general PSTC (including the annexes and schedules) together with any accepted and approved Quotes or additional written agreements between Planck Security and the Customer;
“Confidential Information” means any and all information of a confidential nature, disclosed by either Party (or on its behalf) to the other Party, whether orally, in writing, or in any format or medium and whether prior to or after the Effective Date. Confidential Information of Planck Security will be deemed to include the Licensed Software, and any pricing, terms, attachments, appendices, and all information related to the Licensed Software associated with this Agreement. Confidential Information of the Customer will in any event include the Customer Data. “Confidential Information” does not include any information that the receiving Party can demonstrate is: (a) rightfully known prior to disclosure; (b) rightfully obtained from a Third Party authorized to make such a disclosure, without breach of the terms and conditions of this Agreement; (c) independently developed by the receiving Party as demonstrated by contemporaneous documents; (d) available to the public without restrictions; (e) approved for disclosure with the prior written approval of the disclosing Party; or (f) disclosed by court order or as otherwise required by law, provided that the Party required to disclose the information provides prompt advance notice to enable the other Party to seek a protective order or otherwise prevent such disclosure;
“Customer Data” means the email metadata processed by the Licensed Software and/or any other data and information entered by the Customer and/or Permitted Users through use of the Licensed Software;
“Deliverable(s)” means all Intellectual Property Rights created, prepared, produced or developed by Planck Security under or in connection with the Professional Services provided pursuant to this Agreement, (including, without limitation, all right, title and interest in any ideas, concepts, know-how, techniques, code, materials, designs, methods, systems, software, programming, documentation and other deliverable and derivative works of the deliverables (on whatever media);
“Documentation” means any official documentation provided by Planck Security concerning the use of the Licensed Software, including but not limited to Planck Security’s website;
“Downtime” means any period of time in which the Software Service is not functioning in a material way or is not generally available, other than such periods which have been previously agreed with the Customer or periods of maintenance;
“Effective Date” means the date on which the Customer has accepted the relevant Quote, either by countersigning or completion of the order of the Licensed Software via the website https://www.planck.security/;
“Fee” means the fee payable by the Customer as a consideration for the Licensed Software as set forth in the relevant Quote;
“Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, design rights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights, know-how; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, (f) trade and business names, domain names, database rights and any other industrial or intellectual proprietary rights or similar right (whether registered or unregistered); (g) all registrations, applications for registration, renewals, extensions, divisions, improvements or reissues relating to any of these rights and the right to apply for, maintain and enforce any of the preceding items, in each case in any jurisdiction throughout the world;
“Licensed Software” means Planck Security’s solution, as further identified in the Quote (based on the information with respect to the plans available on https://www.planck.security/) and all related software and applicable Documentation and which is provided for on-prem usage and/or as a service depending on the licensed components;
“Party” or “Parties” means Planck Security and/or the Customer;
“Permitted Users” means Customer’s employees, consultants, contractors, agents, or other representatives of the Customer who have been identified to Planck Security by a unique email address and are given access to the Licensed Software pursuant to this Agreement;
“Professional Services” means additional services provided by Planck Security related to the Licensed Software, upon Customer’s request, including, without limitation to configuration and implementation services, as may be agreed between the Parties in the Quote.
“Quote” means a form of Quote submitted by Planck Security to the Customer in which these PSTC are or are deemed to be incorporated;
“Subscription Start Date” means the subscription start date indicated as such in the Quote (which may be a calendar date or a reference to the Integration Date);
“Renewal Date” means the renewal date indicated as such in the Quote (which may be a calendar date or a reference to a period after the Subscription Start Date);
“Term” means the Initial Term, together with any Renewal Term(s), as applicable;
“Third Party” means any legal or natural person that is not a Party or a Permitted User; and
“Virus” means a virus, cancelbot, worm, logic bomb, Trojan horse or other harmful component of software or data.
3.1. License. Subject to the terms and conditions of this Agreement and timely payment of the Fees by the Customer, Planck Security grants the Customer, as from the Subscription Start Date and until the expiry of the Term, a non-exclusive, limited, non-transferable license to allow the Customer and/or its Permitted Users to download, access and use the Licensed Software, without the right to sublicense (other than to Affiliates). The aforementioned license is granted as of the Effective Date. Planck Security reserves the right to make, in its sole discretion, any material or non-material changes and/or updates to the functionality of the Licensed Software from time to time without prior approval of the Customer, provided that such changes do not materially downgrade any of the functionalities existing on the Effective Date. Planck Security will notify the Customer of material changes at the latest fifteen (15) days before the implementation of such material change via email (to all email addresses subscribed to receiving such communication), publication of updates to Planck Security’s website, or notification in the Licensed Software. If the Customer does not object to such change within fifteen (15) days, the change will be deemed accepted by the Customer.
3.2. Permitted Users. In the Quote, a maximum number of Permitted Users is mentioned. Permitted Users are identified by a unique email address: each email address that is accessed and managed by more than one individual, such as shared email addresses, company-wide inboxes, group email addresses, distribution lists, and others, counts as one additional Permitted User.
4.1. Planck Security acknowledges and agrees that the Customer remains at any time the sole owner of (or where applicable, must ensure it has a valid license to) the Customer Data.
4.2. Where necessary for the performance of the Licensed Software, the Customer grants Planck Security, for the Term, a non-exclusive, worldwide, royalty-free right and license to use, copy, store, modify, transmit and display the Customer Data to the extent necessary to provide the Licensed Software under this Agreement.
4.3. The Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback, excluding Customer Data, to Planck Security with respect to the Licensed Software (“Feedback”). Planck Security, in its sole discretion, will determine whether or not to proceed with the development of the requested enhancements, new features or functionality. The Customer hereby grants Planck Security a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter thereof.
5.1. Customer acknowledges and agrees that this Agreement is not a sale of the Licensed Software or any rights therein, and that Planck Security and its suppliers will at all times retain all Intellectual Property Rights in and to the Licensed Software, including any and all updates, enhancements, derivatives, modifications or improvements thereof created by or on behalf of Planck Security. All rights in and to the Licensed Software not expressly granted to the Customer in this Agreement are reserved by Planck Security. No license is granted to the Customer except as to the use of the Licensed Software as expressly stated herein. Planck Security’s name, Planck Security’s logo, and the product names associated with the Licensed Software are trademarks of Planck Security or Third Parties, and they may not be used without Planck Security’s prior written consent.
5.2. Customer further acknowledges that Planck Security will have the right to use techniques, methodologies, tools, ideas, and other know-how gained during the Term, in the furtherance of its own business and to perfect all other Intellectual Property Rights related thereto.
5.3. Deliverables. Unless expressly specified otherwise in the relevant Quote, all rights, title and interest, including any Intellectual Property Rights, in and to the Deliverables and all copies thereof, and in the Professional Services (including any and all related ideas, concepts, know-how, techniques, inventions, discoveries, improvements, specifications, designs, methods, devices, systems, reports, studies, computer software, programming and other documentation, flow charts, diagrams and all other information or tangible material of any nature whatsoever (in any medium and in any stage of development or completion, in object code and in source code form) that are conceived, designed, practiced, prepared, produced or developed by Planck Security in the course of providing the Professional Services) are and will at all times remain the sole and exclusive property of Planck Security, and the Customer will obtain no rights in the Deliverables and the Professional Services pursuant to this Agreement except for the rights expressly granted pursuant to this Agreement and the relevant Subject to the terms and conditions of this Agreement and subject to timely payment of the corresponding Fees, unless expressly agreed otherwise in the applicable Quote, Planck Security will grant Customer a personal, restricted, non-exclusive, non-transferable, non-assignable license, without the right to sublicense, to use the Deliverables for Customer’s internal business purposes.
6.1. By both Parties. The Customer and Planck Security represent and warrant to each other that they have the authority to enter into this binding Agreement. The Customer and Planck Security will perform their obligations under this Agreement in a good and workmanlike manner.
6.2. By the Customer. The Customer will have sole responsibility for the accuracy, quality, integrity, legality, reliability and copyright of all Customer Data.
6.3. By Planck Security. Planck Security is the owner of or is licensed to use and/or sublicense the Licensed Software. Except as expressly provided in this Agreement and to the extent permitted under applicable law, Planck Security expressly disclaims all warranties, express or implied, including but not limited to any warranties of merchantability, non-infringement, satisfactory quality and fitness of the Licensed Software and the Licensed Software for a particular purpose. In particular, Planck Security does not warrant that the Licensed Software is error-free or that the use of the Licensed Software will be uninterrupted, that Planck Security will detect any or every defect in Customer’s systems or that any or all problems with respect to the Licensed Software can be solved, and hereby disclaims any and all liability on account thereof. The Licensed Software will be provided by Planck Security under this Agreement on an “as-is” and “as available” basis.
7.1. To the maximum extent permitted under applicable law, the maximum liability of the Parties arising out of this Agreement will not in any event exceed the Fees paid by the Customer to Planck Security for the use of the Licensed Software during the preceding twelve (12) month period, except (i) in respect of the indemnification obligations set forth in article 8 of these PSTC, or (ii) in case of fraud or willful misconduct.7.2. In no event will Planck Security, its licensors or its suppliers have any liability to the Customer for any consequential or incidental losses, including but not limited to lost profits, loss of business, loss of use or of data, any unauthorized access to, alteration, theft or destruction of Customer’s or its trading partners’ computers, computer systems, data files, programs or information, or costs of procurement of substitute goods or services, or for any indirect, special or consequential damages however caused and under any theory of liability and whether or not Planck Security has been advised of the possibility of such damage.
8.1. By Planck Security. Planck Security will defend and indemnify the Customer against any founded and well-substantiated claims brought by Third Parties to the extent such claim is based on an infringement of any Intellectual Property Right of such Third Party by the Licensed Software, excluding any claims resulting from (i) any unauthorized use of the Licensed Software, (ii) modification to the Licensed Software made by the Customer, its employees or any Third Party, (ii) failure of the Customer to use updated or modified Licensed Software provided by Planck Security to avoid a claim of infringement or misappropriation, (iii) combination of the Licensed Software with other systems, products, processes or materials to the extent that such claim would have been avoided without such combination use of the Licensed Software.
For the avoidance of doubt, it is specified that Planck Security will in no event be liable for any indirect loss, damage, cost, or expense of any kind whatsoever and howsoever caused, including but not limited to loss of profit.
The foregoing states the entire liability and obligation of Planck Security and will be the sole remedy of the Customer with respect to any infringement or alleged infringement of any Intellectual Property Rights of a Third Party caused by the Licensed Software or any part thereof.
8.2. By Customer. The Customer will defend and indemnify Planck Security against any founded and well-substantiated claims brought by Third Parties to the extent such claim is based on (i) an infringement of any Intellectual Property Rights of such Third Party by Customer Data or other Customer systems, materials or software, (ii) any breach or violation by the Customer or its personnel of any provisions of this Agreement, and/or (iii) fraud, intentional misconduct, or gross negligence committed by the Customer or its personnel. Such indemnity obligation will be conditional upon the following: (i) the Customer is given prompt written notice of any such claim; (ii) the Customer is granted sole control of the defense and settlement of such a claim; (iii) upon Customer’s request, Planck Security fully cooperates with the Customer in the defense and settlement of such a claim, at Customer’s expense, and (iv) Planck Security makes no admission as to the Customer’s liability in respect of such a claim, nor does Planck Security agree to any settlement in respect of such a claim without the Customer’s prior written consent. Provided these conditions are met, the Customer will indemnify Planck Security for all direct damages and reasonable costs incurred by Planck Security as a result of such a claim, as awarded by a competent court of final instance, or as agreed to by the Customer pursuant to a settlement agreement.
For the avoidance of doubt, it is specified that the Customer will in no event be liable for any indirect loss, damage, cost or expense of any kind whatsoever and howsoever caused, including but not limited to loss of profit.
9.1. During the Term and as a consideration for the Licensed Software, the Customer agrees to pay the Fee as set forth in the Quote.
9.2. Planck Security will invoice the Fees upfront on a monthly basis, unless other invoicing arrangements are set forth in the Quote. The Fee for the first subscription month (or other first invoicing period as agreed in the Quote) will be invoiced by Planck Security on the Subscription Start Date. All payment obligations are non-cancellable and all amounts paid are non-refundable. All invoices for any charges under this Agreement are due and payable within thirty (30) calendar days of the invoice date, unless specified otherwise in the Quote. Amounts due are exclusive of all applicable taxes, levies, or duties, and the Customer will be solely responsible for payment of all such amounts. All amounts are payable in Euro. All amounts not paid by the Customer on the due date mentioned in the invoice will bear interest in accordance with the applicable legal interest rate for late payments in commercial transactions.
10.1. Under no circumstances may either Party disclose any non-public pricing or business terms related specifically to this Agreement, or any negotiations thereof, to any Third Party (including, but not limited to, competitors, industry analysts, press or media).
10.2. Neither Party will use any Confidential Information of the disclosing Party except as expressly permitted in this Agreement or as expressly authorized in writing by the disclosing Party. Each Party will use the same degree of care to protect the disclosing Party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances less than reasonable care. Neither Party is allowed to disclose the other Party’s Confidential Information to any person or entity other than the receiving Party’s officers, employees, consultants and legal advisors who have a need to know such Confidential Information and who are bound by similar confidentiality obligations as those set out in this Agreement. Each individual or entity receiving Confidential Information pursuant to this subsection must have entered into a written confidentiality agreement the sole objectives of which are to further the intent of this article 10. The Customer will not disclose, orally or in writing, any benchmark tests of the Licensed Software to any Third Party. Each Party agrees to notify the other Party of any unauthorized use or disclosure of Confidential Information and to provide reasonable assistance to such other Party, and its licensors, in the investigation and prosecution of such unauthorized use or disclosure.
11.1. During the Term, Planck Security will use its best efforts to provide the Customer with support and maintenance for the Licensed Software via Planck Security’s customer support portal. At the request of the Customer, Planck Security may provide additional support to the Customer, as may be agreed between the Parties in a Quote. Moreover, Planck Security undertakes to use all commercially reasonable efforts to remedy bugs reported by the Customer, to provide the Licensed Software without any material Downtime, and, to the extent such Downtime occurs, to resolve such Downtime as soon as reasonably possible. To the best of Planck Security’s knowledge, the Licensed Software does not contain any Virus.
11.2. At the request of the Customer, Planck Security may deliver professional services to the Customer to support the adoption and optimal usage of the Licensed Software.
11.3. Planck Security agrees to provide Professional Services, as may be agreed between the Parties in a Quote. Each Quote will set forth the Professional Services and/or deliverables to be provided by Planck Security, the applicable assumptions and Customer dependencies, the Fees and expenses to be paid to Planck Security, and such additional terms and conditions as the Parties may mutually agree. Unless a fixed number of hours of Professional Services is included in a Fee package as specified in the Quote, the Professional Services will be based on the actual hours and days worked and materials used.
11.4. Planck Security shall perform the Professional Services in a professional manner and shall use reasonable skill and care in performing the Professional Services. Planck Security shall provide reasonable efforts to deliver the Professional Services in accordance with any delivery dates set out in the applicable Quote. However, any timeframe for performance specified in a Quote or Documentation shall be indicative target dates only, unless expressly stipulated in the relevant Quote to be binding milestones.
11.5. The Customer shall co-operate with Planck Security and provide such assistance, information and equipment as reasonably requested by Planck Security to be able to adequately perform the Professional Services. Where performance of the Professional Services is delayed by the Customer (or a third party acting under the Customer’s control or on the Customer’s behalf), including as a result of Customer dependencies not being met, any costs incurred by Planck Security as a result thereof shall be paid by the Customer. The Customer acknowledges and agrees that in the event the Customer fails to fulfil any of its obligations under the Agreement or a Quote or should any assumptions specified in a Quote prove incorrect, the timeline and fees as specified in the relevant Quote may be adversely impacted.
12.1. The Customer agrees and acknowledges that personal data (other than personally identifiable information of Permitted Users, IP addresses and other unique, non-personal identifiers such as Cookie IDs which are necessary for the provision of services under this Agreement) is processed by Planck Security only if and insofar the Customer chooses to make such data available when subscribing to or receiving the Licensed Software.
12.2. If, and only to the extent, Planck Security processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the Parties record their intention that the Customer will be the data controller and Planck Security will be a data processor and in that personal data will be processed in accordance with the data processing agreement that will be concluded between the Parties.
13.1. This Agreement will enter into force and will take effect as from the Effective Date and will expire on the Renewal Date (the “Initial Term”), as set forth in the applicable Quote. This Agreement will automatically renew for successive periods, either monthly or annually, depending on the chosen subscription model as set forth in the applicable Quote (each a “Renewal Term”) beginning at the end of the Initial Term, unless either Party provides notice of termination before the end of the Initial Term or then current Renewal Term, as applicable, and as set forth in the applicable Quote.
13.2. Termination for material breach. Either Party may terminate this Agreement by written notice to the other Party if the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) calendar days from receipt of a default notice.
13.3. Either Party may terminate this Agreement by written notice to the other Party, effective as of the date of delivery of such notice, if the other Party becomes the subject of a voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business.
13.4. Upon termination of this Agreement for whatever reason (i) the Customer will promptly pay Planck Security all Fees and other amounts earned by or due to Planck Security pursuant to this Agreement, up to and including the date of termination, (ii) all user rights granted to the Customer pursuant to this Agreement, including the rights to use the Licensed Software as per article 3, will automatically terminate. Termination of this Agreement on whatever ground will be without prejudice to any right or remedy that has accrued prior to the actual termination.
13.5. The provisions of this Agreement that are expressly or implicitly intended to survive termination will survive any expiration or termination of this Agreement.
14.1. Applicable law and Jurisdiction. This Agreement will be interpreted fairly in accordance with its terms, without any strict construction in favour of or against either Party and in accordance with Luxembourg law, without giving effect to any laws of conflict. The competent courts of Luxembourg will have exclusive jurisdiction over any dispute or controversy arising from or relating to this Agreement or its subject matter.
14.2. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
14.3. No Agency. No joint venture, partnership, employment, or agency relationship exists between Customer and Planck Security as a result of this Agreement or use of the Licensed Software.
14.4. No Waiver. The failure of a Party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by that Party in writing.
14.5. Force Majeure. Except for the payment of the Fee by the Customer, if the performance of this Agreement by either Party is prevented, hindered, delayed or otherwise made impracticable by reason of any flood, riot, fire, judicial or governmental action, labor disputes, power failures, cybercrime, unauthorized access to Planck Security’s information technology systems by Third Parties, or any other causes beyond the control of such Party, that Party will be excused from such to the extent that it is prevented, hindered or delayed by such causes.
14.6. References. The Customer hereby authorizes Planck Security to make public reference to the Customer as a customer of Planck Security and to use the Customer’s name and logo, which remain trademarks of the Customer, on its website for this purpose only (for the avoidance of doubt, without, in any event, disclosing any Confidential Information). Other public references to the Customer will not be made without the Customer’s prior consent.
14.7. Assignment. This Agreement may not be assigned by the Customer without the prior written approval of Planck Security but may be assigned by Planck Security to (i) a parent company or subsidiary, (ii) an acquirer of all or substantially all of Planck Security’s assets involved in the operations relevant to this Agreement, or (iii) a successor by merger or other combination. Any purported assignment in violation of this article will be void. This Agreement may be enforced by and is binding on permitted successors and assigns.
14.8. Notice. Each Party must deliver all notices or other communications required or permitted under this Agreement in writing to the other Party at the address listed on the first page of this Agreement by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt or refusal of delivery. If delivered by certified or registered mail, any such notice will be considered to have been given five (5) calendar days after it was mailed, as evidenced by the postmark. If delivered by courier or express mail service, any such notice will be considered to have been given on the delivery date reflected by the courier or express mail service receipt. Each Party may change its address for receipt of notice by giving notice of such change to the other Party.
14.9. Entire Agreement. This Agreement, together with any applicable Documentation, comprises the entire agreement between the Customer and Planck Security and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding the subject matter contained herein.
14.10. Amendments. Planck Security reserves the right to amend the PSTC in its sole discretion from time-to-time to the extent that such amendments concern minor modifications. If Planck Security wishes to implement major modifications, that are crucial to the Licensed Software, to these PSTC, Planck Security will notify the Customer at the latest fifteen (15) days before the implementation of such major modification via email (to all email addresses subscribed to receiving such communication), publication of updates to Planck Security’s website, or notification in the Licensed Software. If the Customer does not object to such modification within these fifteen (15) days, the modification will be deemed accepted by the Customer.