UP-TO-DATE TERMS AND CONDITIONS CAN BE FOUND HERE
THE CONDITIONS BELOW EXPIRED ON DECEMBER 31 2020
Global terms and conditions | United States terms and conditions
Foleon is the tool for creating interactive web content. FOLEON B.V., with its registered office in Amsterdam, the Netherlands, listed in the Commercial Register of the Chamber of Commerce under file reference number 58585680, hereinafter referred to as “Foleon” grants its customers (hereafter referred to as “client”) licences for the use of the Foleon software, thereby providing related services such as creative services. All agreements between Foleon and its Client are subject to these general terms and conditions (hereinafter referred to as “general terms and conditions”).
Article 1 Validity of these conditions
1-1 These general terms and conditions apply to all negotiations, quotations, offers, agreements and other (legal) acts entered into by Foleon.
1-2 The client’s assignment and/or licence acquisition will be deemed to constitute acceptance of Foleon’s general terms and conditions.
1-3 Any special provisions derogating from Foleon’s conditions will only be binding if agreed in writing.
1-4 Foleon expressly rejects the applicability of any general terms and conditions of the client.
1-5 In the event of a conflict between a provision of the agreement entered into between Foleon and the client and the general terms and conditions, the provisions of the agreement prevail.
1-6 If and to the extent that any provision of the general terms and conditions or any part of a provision is declared null and void or is nullified, the other provisions, or the other part of the null and void or nullified provision, of the general terms and conditions remain in full force and effect. In such an event, Foleon and the client will consult on a new provision to replace the null and void/nullified provision, observing the purport of the null and void/nullified provision to the greatest extent possible.
Article 2 Offers
2-1 Unless expressly stated otherwise, any quotations and/or offers are without obligation and based on the information provided in respect of enquiries, if any. Such quotations and/or offers will not become binding until after signing the contract.
2-2 Quotations by Foleon will be valid for the term indicated in the offer. If no term is indicated, the offer will be valid until 30 days after the date of issue of the offer.
2-3 Unless expressly for internal purposes, quotations by way of estimates, offers, price lists or other records may not be reproduced or submitted to third parties for inspection.
Article 3 Delivery or completion periods
3-1 Unless otherwise agreed in writing, the term of the agreement for the use of the software shall be for a fixed period of twenty-four (24) months. The Agreement shall automatically renew for an additional fixed period of twelve (12) months on the expiration date of the initial term, and on each successive anniversary date thereafter, unless either party gives written notice to the other party two (2) months prior to expiry of the term.
3-2 In cases where Foleon provides services other than the granting of licences for the Foleon software, the stated delivery or completion periods are by approximation. The delivery or completion periods have been established based on the expectation that there will be no obstacles for Foleon to perform the services or to undertake the work.
3-3 If Foleon is unable to perform its obligations in good time when providing services other than the granting of licences for the Foleon software, Foleon will promptly notify the client, stating the expected period by which the said delivery or completion period will be exceeded.
Article 4 Contract variations
Any written or oral changes to the original assignment, of any nature whatsoever, made by or on behalf of the client, that may lead to higher costs than could be anticipated at the time of the quotation, will be charged to the client as additional costs.
Article 5 Liability
5-1 If Foleon would be liable vis-à-vis the client due to an attributable shortcoming or unlawful act, the provisions of this article 5 apply.
5-2 Foleon has taken out professional and corporate liability insurance on terms and conditions customary in the industry. Without prejudice to the provisions of this article 5, paragraphs 3 to 6, any liability of Foleon vis-à-vis the Client, for whatever reason, will be limited to the amount equal to the payment made under Foleon’s professional and corporate liability insurance.
5-3 If for whatever reason, no payment is made under the professional and business liability insurance of Foleon and Foleon would be liable on the basis of these general terms and conditions, the liability of Foleon will be limited to 5 (five) times the amount owed by the client under the licence agreement in respect of licence costs for one year, with a maximum of EUR 50,000.
5-4 Foleon is never obliged to compensate for damage or loss suffered as a result of acts or omissions of the client, its subordinates or other persons employed by or on behalf of the client, or damage or loss that is the result of an infringement by the client of intellectual property rights of any nature whatsoever. The client indemnifies Foleon against any third-party claims in respect of an infringement of their intellectual property rights, wrongful act or default, as a result of or in connection with the agreement.
5-5 Foleon is never liable for damage or loss of any nature whatsoever caused by hacking by third parties or viruses, malware, etc., provided that Foleon has taken all reasonable security measures that can be expected of it.
5-6 Foleon will maintain its own software, which is hosted on one or more server locations. The content of the application and the publication will be divided over various servers to limit the risks of failure to the greatest extent possible and to guarantee the highest uptime possible. In no event will Foleon be liable for damage or loss of any nature whatsoever caused by server downtime or the application, the publication or the application being offline or inaccessible.
5-7 The limitations of Foleon’s liability referred to in this article 5 do not apply if the damage or loss is the result of intent or gross negligence by Foleon.
Article 6 Responsible use, fair use
6-1 The client accepts full responsibility for the content and use of the application and the publication.
6-2 In the event of the client violating a provision of the agreement or the general terms and conditions, Foleon reserves the right to disable the application and/or the publication, either temporarily or permanently.
6-3 The client grants Foleon consent to access the application and the publication at any time - without any prior written consent being required - for the purpose of technical support, the performance or maintenance work, or to verify that the use is in accordance with what has been agreed.
6-4 The client will be fully responsible in respect of the access data and any direct or indirect consequences of unauthorised use. The client will ensure that the logins and passwords remain strictly confidential.
6-5 Foleon wants to ensure an optimal user experience for each client. Foleon may therefore, without being obliged to compensate for damage or loss suffered by the client as a result thereof, take technical or other measures in the event it establishes excessive use of bandwidth by the client. Excessive use will in any event be deemed to exist in the following circumstances: (a) the client uses more than 200 GB per month or per publication, and/or (b) the storage used by the client exceeds 1 TB per account.
Article 7 Intellectual property rights
7-1 All copyrights and all other intellectual property rights relating to the Foleon software, templates, designs, texts and images belong exclusively to Foleon or its licensors unless expressly agreed otherwise in writing.
7-2 Foleon will be entitled to autograph its publications or have its name stated in the colophon, in rolling credits, or otherwise published in the publication, provided it is in the usual manner.
7-3 Foleon is entitled to use publications published by the client, including the client’s trade name and/or marks contained therein, for its own promotion and/or publicity purposes.
7-4 Foleon further reserves the right to use the increased knowledge as a result of the performance of the services for other purposes, to the extent that this will not cause any confidential information to be disclosed to third parties.
7-5 The client is and remains the owner of the intellectual property rights in content added by the client, such as designs, images, texts, drawings, etc.
7-6 The client warrants that is has all necessary right, title or interest to the intellectual property rights in content added by the client, such as designs, images, texts, drawings, etc. The client hereby agrees to indemnify and hold harmless Foleon in respect of all claims, costs, damages and losses incurred by Foleon in relation to any infringement by the client of the intellectual property rights of any third party.
Article 8 Licence to Foleon software
8-1 The client will acquire a licence to use the application, one or more publications and the associated content management system. The licence only applies to use by the client itself. This means that third-party use, being the use by any other legal entity than the client, including affiliates of the client, is not permitted unless otherwise agreed.
8-2 The client can use the login name and password provided by Foleon to access a management account that enables the client to use the application.
8-3 Furthermore, the client will have access to the Foleon support desk to the extent necessary. The agreement will state the level of support.
8-4 The client will at all times remain responsible for the content of the publications published by it.
8-5 In the event of a suspected infringement of third-party rights or punishable content, Foleon will be entitled to render the publications offline without any further notice being required.
8-6 The publications published will remain visible and online throughout the term of the agreement between the client and Foleon. After the termination of the agreement, Foleon will not be under any obligation to retain information of any nature whatsoever. The published and unpublished publications and other information will be removed unless otherwise agreed in writing.
Article 9 Confidentiality
Either party will be under the obligation to keep secret all confidential information obtained from the other party or from another source in the course of their agreement. Information is considered confidential if the other party has communicated its confidential nature or if such confidentiality ensues from the nature of the information.
Article 10 Default and dissolution
10-1 In the event of a failure on the part of the client to perform any obligation whatsoever, it will be in default in that respect without any notice of default being required. Without prejudice to the provisions of the Netherlands Civil Code, Foleon will also be entitled to suspend the agreement entered into or to consider all or part of such agreement dissolved, without any judicial intervention being required, all of which is at the discretion of Foleon, and to render the publications offline without any further notice being required.
10-2 The rights referred to in paragraph 1 of this article are also vested in Foleon if the client, in whatever country, is declared insolvent or if its liquidation is filed for, if the client has applied for or has been granted a suspension of payments or in the event of a comparable situation. In all such events, all claims of Foleon against the client will become immediately due and payable.
Article 11 Payment
11-1 If payment in instalments has been agreed on, each instalment is to be paid 14 days after the day of despatch by Foleon of the relevant instalment invoice to the client unless otherwise agreed in writing.
11-2 Payment is to be made within 14 days of submission of the invoice unless otherwise agreed in writing.
11-3 Furthermore, Foleon, in addition to the principal sum and interest, will be entitled to claim compensation of all judicial and extrajudicial costs incurred as a result of non-payment or late payment, including the costs of lawyers, legal counsel, attorneys, bailiffs and collection agencies.
Article 12 Miscellaneous
12-1 All negotiations, quotations, offers, agreements and other (legal) acts between Foleon and the client are governed by the laws of the Netherlands, irrespective of the place where the agreement is performed. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) is expressly waived.
12-2 Any disputes between Foleon and the client as a result of or relating to negotiations, quotations, offers, agreements and other (legal) acts will be submitted to the exclusive jurisdiction of the competent judge with the District Court Amsterdam, including its preliminary relief judge.
United States Terms
Article 1 Applicability and Validity of the Terms
- These Terms apply to all offers of Foleon Inc. (“Foleon”) and govern the use of the Services, the relationship and any agreements between Foleon and Customers.
- No other terms and conditions than these Terms shall be binding upon Foleon, unless accepted by it in writing. Foleon expressly rejects any general terms and conditions used by Customer. Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void and do not bind Foleon. In the event of a conflict between the Terms and a provision in one or more Agreements entered into between Foleon and the Customer, the provisions of the Agreement(s) will prevail.
Article 2 Offers
- Any offers by Foleon are non-binding and can be revoked at any time unless Foleon expressly stated otherwise in writing.
- Offers by Foleon will be valid for the term indicated in the offer. If no term has been indicated, the offer will be valid for 30 days after the offer’s date of issue.
- Any additions or amendments to an offer by Foleon shall entail a new offer, automatically revoking the previous offer. Any additions or amendments to an offer by a third party shall be deemed a new offer which Foleon management may accept or reject in its sole discretion.
- Offers will only be deemed accepted by Foleon if it does so in writing.
- Offers, quotations, price lists or other records may not be reproduced or submitted to third parties for inspection without Foleon’s prior written consent.
Article 3 Registration
- To be able to start using the Services, an Account has to be opened as instructed by Foleon and one has to register to become a u Only upon receipt of written (email) confirmation by Foleon, a party becomes a “User”.
- A party must provide accurate and complete registration information and keep this information up to It is not allowed to: (i) use a false name or an email address owned or controlled by another person; and (ii) use as a User Name a name subject to any third-party rights, without appropriate authorization. Customer shall be responsible for maintaining the confidentiality of the password and Customer is fully responsible for all activities that occur under its User Name and password. Any User Name and password is for use of the Customer only. Customer agrees to immediately notify Foleon of any unauthorized use of its User Name and/or password, and must undertake immediate and effective measures to limit any possible misuse, including changing the password.
- Foleon reserves the right to change the login procedure, the password and/or the User Name, at its sole Customer will be informed of such changes by email, at the email address provided at the time of registration.
- The Customer will be fully responsible for the confidentiality of its User Name and password and any direct or indirect consequences of unauthorized use. The Customer will ensure that the User Name and password remains strictly confidential.
Article 4 The Service
- Foleon has the right, at its sole discretion and with prior notification to Customer, to limit or interrupt use of the Services, fully or partly, for the purpose of upgrading or maintenance of any part of the In addition, Foleon has the right, without any prior notification, to make procedural and technical modifications and/or improvements to the Services or any feature used by means of the Services, as communicated via the Website.
- Foleon is entitled to engage the services of third parties for the execution of an Agreement.
- The Customer accepts full responsibility for their use of the Website and the Services.
- Foleon reserves the right, in the event of violation of the Terms and/or the Agreement, to disable the Website and/or access to the Services either temporarily or permanently.
- The Customer grants Foleon consent to access Customer’s account at any time - without any prior written consent required - for the purpose of technical support, the performance of maintenance work, or to verify that the use is in compliance with the Agreement and these Terms.
- Customer shall not, nor will enable and/or allow third parties – to: (i) copy, modify, translate, or reverse engineer any part of, or any feature used by means of, the Services; (ii) remove any copyright, trademark or other proprietary rights notices; (iii) use any robot, spider, other automated device, or manual process to monitor or copy any part of, or any feature used by means of, the Services; (iv) collect any information about other Customers (including user names and/or email addresses) ; (v) reformat or frame any portion of the web pages that are part of the Website; (vi) create user accounts by automated means or under false or fraudulent pretenses; (vii) create or transmit unwanted electronic communications such as spam to other Customers, or otherwise interfere with other Customers enjoyment of the Services; (viii) transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature; (ix) use the Services to violate the security of any computer network, crack passwords or security encryption codes; (x) copy or store any content offered on or via the Website or the Services, for anything other than its own use; (xi) use any device, software or routine that interferes with the proper working of any part of, or any feature used by means of, the Services, or otherwise attempt to interfere with the proper working of any part of, or any feature used by means of the Services ; (xii) take any action that imposes, or may impose in Foleon’s sole discretion, an unreasonable or disproportionately large load on Foleon’s IT infrastructure; or (xiii) use any part of, or any feature used by means of, the Services, intentionally or unintentionally, to violate any applicable local, state, national or international
- With respect to paragraph 6(xii) above, the available bandwidth for the Magazines is limited by Foleon’s fair use policy. In the event of excessive data traffic – to be determined in Foleon's sole discretion - Foleon may take technical or other measures.
- In the event that Foleon determines there has been excessive data traffic it will – in addition to taking technical or other measures, if any – charge the Customer [$0.15USD] per GB of data used during the period of excessive data traffic. Such charge will be subject to the payment periods, etc. as referred to in article 10 of these Terms.
Article 5 Delivery or completion periods
- Any delivery or completion periods stated will be estimates only. The delivery or completion periods have been established based on the expectation that there will be no obstacles for Foleon to perform the Services or to undertake the work.
- If Foleon is unable to perform its obligations by the delivery date/completion period, Foleon will promptly notify the Customer, stating the expected period by which the said delivery or completion period will be exceeded.
Article 6 Liability
- CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR ALL CONTENT, DATA AND ACTIVITIES CONDUCTED THROUGH OR VIA THE SERVICE, OR ANY PART OR FEATURE THEREOF, BY OR ON BEHALF OF CUSTOMER, EVEN IF SUCH ACTIVITIES WERE TO OCCUR WITHOUT CUSTOMER’S PERMISSION.
- IN NO EVENT SHALL FOLEON, ITS AFFILIATES OR ITS LICENSORS BE LIABLE, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER FORM OF LIABILITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, BUSINESS, SALES, PROFITS (WHETHER ACTUAL OR ANTICIPATED), LOSS OF OR CORRUPTION TO DATA, OR INTERRUPTION OF BUSINESS.
- NOTWITHSTANDING ANYTHING ELSE AGREED IN WRITING WITH CUSTOMER, FOLEON’S AGGREGATE LIABILITY FOR ALL CLAIMS OF ANY KIND SHALL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER TO FOLEON IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEEDING THE EVENT CAUSING THE DAMAGES.
- THE LIMITATIONS ON LIABILITY ABOVE SHALL APPLY WHETHER OR NOT A PARTY, ITS EMPLOYEES, LICENSORS OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES ARISING.
- CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD FOLEON, ITS PRESENT AND FUTURE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS AND ITS AFFILIATES, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, LOSSES, DAMAGES, PENALTIES, LIABILITY AND COSTS, INCLUDING REASONABLE ATTORNEYS’ FEES, IN CONNECTION WITH OR ARISING OUT OF ANY USE OF THE SERVICES BY CUSTOMER, OR CUSTOMER’S BREACH OF THE AGREEMENT AND/OR THESE TERMS. THE OBLIGATIONS IN THIS ARTICLE 6 INCLUDE, BUT ARE NOT LIMITED TO, CLAIMS THAT CONTENT POSTED AND/OR MADE AVAILABLE BY OR ON BEHALF OF CUSTOMER, INFRINGES UPON THE RIGHTS OF THIRD PARTIES, OR IS OTHERWISE UNLAWFUL.
- IF THE SERVICES OR ANY PART THEREOF BECOME OR IN FOLEON’S OPINION IS LIKELY TO BECOME THE SUBJECT OF A SUIT OR CLAIM FOR INFRINGEMENT OR MISAPPROPRIATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, FOLEON MAY, AT ITS OPTION AND SOLE EXPENSE: (I) OBTAIN THE RIGHT FOR CUSTOMER TO USE THE INFRINGING PRODUCTS AND SERVICES OR (II) REPLACE OR MODIFY THE SERVICES SO THAT IT BECOMES NON-INFRINGING WITHOUT ANY REDUCTION IN FUNCTIONALITY.
- Notwithstanding any other provision herein or in the Agreement, Foleon is never liable for: (i) any damage of whatever nature suffered by Customer due to the fact that the Services are temporarily unavailable, or temporarily unavailable in its proper or complete form; (ii) any damage of whatever nature suffered by Customer in connection with Customer’s, Foleon’s or third parties’ internet connections; (iii) damages resulting from content used or created via the Services, that has not been stored, sent or received in a proper, complete or timely manner.
Article 7 Intellectual Property Rights and License
- Customer understands and agrees that Foleon (or its licensors) own all legal right, title and interest in and to the Services, and any and all parts thereof, including parts and features used by means of the Services, such as the Website, the source code, designs, templates, and the Know How, including any Intellectual Property Rights, whether or not registered, and wherever in the world those rights may exist, but excluding any Customer generate content. Customer further understands and agrees that the Services may contain information which is designated confidential by Foleon, and that it may not disclose such information without Foleon’s prior written consent.
- Foleon will be entitled to include its trade name, trademark, and/or logo on any of its Services or to cause its trade name, trademark or logo to be included in the colophon, rolling credits, or otherwise, in any Magazine published by the Customer.
- Foleon reserves the right to use any Magazines published by the Customer for its own promotional and/or publicity purposes.
- The Customer is and will remain the owner of the Intellectual Property Rights in all content added by the Customer, such as designs, images, texts, drawings, etc.
- Subject to the conditions set forth in the Agreement and these Terms, Foleon grants the Customer a limited, personal, irrevocable, nonexclusive, nonsublicensable, nontransferable right to use the Services. Customer is entitled to publish its Magazine within the scope of the Services and these Terms.
- Use of the Customer’s license by third parties will be permitted only with the prior written consent of Foleon.
- Furthermore, the Customer will have access to the Foleon support desk to the extent necessary. The Agreement will determine the level of support available to Customer.
- The Customer will at all times remain responsible for the content of the Magazines published by it, and Foleon will be under no obligation to review any Customer content.
- Foleon is entitled to remove a Magazine without notice in cases of suspected infringement of rights of third parties or criminal content.
- Published Magazines will remain visible and online throughout the term of the Agreement. After termination of the Agreement, Foleon will not be under any obligation to retain any information of any nature. The published and unpublished Magazines and other information will be removed, unless agreed otherwise in writing.
Article 8 Confidentiality
- Confidential Information means (i) the existence and terms of any agreement between the Parties and (ii) any non-public, confidential or proprietary information relating to a disclosing Party, whether or not technical in nature, including any that is designated by the disclosing Party as Confidential Information at the time of its disclosure, either by a written or visual confidentiality designation, or otherwise if such information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is in the public domain at the time of disclosure or becomes available thereafter to the public without restriction, and in either case not as a result of the act or omission of the receiving Party; (ii) is rightfully obtained by the receiving Party from a third party without restriction as to disclosure; (iii) is lawfully in the possession of the receiving Party at the time of disclosure by the disclosing Party and not otherwise subject to restriction on disclosure; (iv) is approved for disclosure by prior written authorization of the disclosing Party; or (v) is developed independently and separately by either Party without use of the disclosing Party’s Confidential Information.
- Each Party agrees that it will safeguard the confidentiality of the Confidential Information supplied by the other Party and that it will observe the same due care with respect to such information as it would observe with respect to its own Confidential Information. The other Party shall not sell, copy and/or distribute in any way Confidential Information to third parties, without disclosing Party’s prior written consent, which consent may be granted or withheld in such Party’s sole and absolute discretion.
- Each Party agrees that it will restrict the circle of employees or third parties it retains who have access to the other Party’s Confidential Information as much as possible and provide such access only on a need to know basis and after binding such employees and third parties to the same level of confidentiality as set forth in these Terms and Conditions.
- Immediately following the receipt of a written request to this effect by the disclosing Party the receiving Party will return any and all Confidential Information received from the disclosing Party or destroy such Confidential Information, if the disclosing Party so requests.
Article 9 Default and Termination
- Unless otherwise agreed in writing, the term of the Agreement for the use of the Software shall be for a fixed period of twenty-four (24) months. The Agreement shall automatically renew for an additional fixed period of twelve (12) months on the expiration date of the initial term, and on each successive anniversary date thereafter, unless a party gives written notice to the other party sixty (60) days prior to expiry of the term.
- Foleon and Customer may terminate an Agreement, or Foleon may suspend performance thereunder at any time, including performance of, or access to any part of the Services, (i) if either Party breaches an Agreement or these Terms, which breach was not cured within five (5) days of written notice of such breach by the other Party; (ii) if either Party reasonably suspects that Customer is breaching the law or infringes third party rights; (iii) for a force majeure event that continues for more than thirty (30) days upon written notice; (iv) if Customer fails to pay any amounts due to Foleon ; (v) if required due to change in laws/regulation by a regulator or authority with a lawful mandate; (vi) if either Party’s bankruptcy has been applied for; (vii) an attachment is levied on either Party’s goods; (viii) either Party’s business is liquidated or discontinued; and/or (ix) either Party violated any applicable law or regulation.
- If Customer believes that Foleon has failed to perform under the Agreement or the Services are defective, Customer must notify Foleon in writing and allow ten (10) days for Foleon to cure the defect. If Foleon cures the defect within this cure period, Foleon will not be in default and cannot be held liable for any damages and/or losses in connection with such default. If Foleon has not cured the defect within this cure period, Customer may terminate the Agreement with immediate effect, upon written notice to Foleon, and is entitled to a pro-rated refund of any pre-paid fees.
- Upon termination of the Agreement for any reason whatsoever, the Customer’s license to use the Services will end immediately and access to the Services will be terminated immediately. Upon termination Foleon may immediately deactivate the Account and remove all Magazines or content related to the Account. After termination Foleon will not be required to provide any information, material and/or Magazine to the Customer and/or to convert the same.
Article 10 Payment
- Payment is to be made within 14 days of an invoice’s date of issue, unless otherwise agreed to in writing.
- If payment in installments has been agreed, each installment is to be paid 14 days after the date of issue of the relevant installment invoice to the Customer, unless otherwise agreed to in writing.
- Furthermore, Foleon will be entitled, in addition to the principal sum and interest, to claim reimbursement by the Customer for all judicial and extrajudicial costs incurred as a result of non- payment or late payment, including the costs of lawyers, legal counsel, attorneys, bailiffs and collection agencies. Any extrajudicial costs incurred shall be equal to 15% of the outstanding principal and interest, subject to a minimum of $50.
- Any written or oral changes to the Agreement, of any nature whatsoever, made by or on behalf of the Customer, that may lead to higher costs than could be counted on at the time of the quotation, will be charged to the Customer as additional costs.
Article 11 Warranty
- Customer accepts and agrees that the Services provide only the functionality and other properties provided by the Services at the time of use. Except as otherwise set forth in these Terms, the Services are provided on an “as is” basis. Use of the Services is at the Customer’s own risk. Foleon expressly disclaims any and all warranties of any kind, whether express or implied, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose, and any other warranty that might arise under any law. Without limiting the foregoing, Foleon makes no representations or warranties that the Services will be uninterrupted or errorfree. In case of any interruption of Services, Foleon will have the obligation to undertake any and all actions commercially and reasonably available to cure such interruption, as set forth in the Service Level Agreement, which is the exclusive and only remedy available in case of interruption of Services.
- Foleon hereby warrants that it is the owner of the Services and/or has the right to grant to Customer the license to use the Services as set forth in the Agreement without violating the rights of any third party, has good title thereto.
Article 12 Applicable Law and Jurisdiction
Unless stated otherwise in writing, the Agreement, the Terms, and the Services and any and all Agreements between Customer and Foleon, shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to the United Nations Convention on the Contracts for the International Sale of Goods. The Parties hereby consent to the exclusive jurisdiction of the state and federal courts located in the County of New York, State of New York in any dispute arising under these Terms.
Article 13 Miscellaneous
- If and to the extent that any provision of the Terms, or any part of a provision, is declared null and void or is nullified, the other provisions, or the other part of the null and void, or nullified, provision, of the Terms will remain in full force and effect. In such event Foleon and the Customer will consult on a new provision to replace the null and void/nullified provision, observing the purpose of the null and void/nullified provision to the extent possible.
- The failure to exercise, or delay in exercising, a right, power or remedy shall not constitute a waiver of that right, power or If either Party waives a breach of any provision of these Terms, this shall not operate as a waiver of a subsequent breach of that provision or as a waiver of a breach of any other provision.
- The Agreement, these Terms, and any agreement with Customer is for Customer’s sole benefit, and except as otherwise contemplated therein, nothing therein expressed or implied shall give or be construed to give any person other than Customer any legal or equitable rights
- Customer is not permitted to assign, delegate or otherwise transfer the Agreement or any rights hereunder. Any such attempted assignment, delegation or transfer will be null and void. Foleon is permitted at its sole discretion to assign the Agreement or any rights or obligations hereunder to any third party, without giving prior notice.
- Customer understands and agrees that Foleon shall suffer irreparable injury in case of breach of the obligations under Article 7. Accordingly, in the event of such breach, Customer understands and agrees that Foleon will be entitled to seek injunctive relief in any federal court of competent jurisdiction within the County of New York, State of New York.
- All terms and conditions of the Agreement and these Terms, which are destined (whether expressed or not) to survive the duration or termination of this Agreement, shall so survive, which includes, but is not limited to Articles 6, 7, 9 and 12 of these
Article 14 Definitions The following terms shall have the meaning assigned below; terms denoting the singular number, include the plural and vice versa, and may be used in these Terms and Conditions (“Terms”) both in a singular or plural format, both formats referring to the same definition hereunder; words denoting one gender include the other gender:
- Agreement: shall mean the agreement between the Customer and Foleon, which refers to these Terms, to access and use the Services via an Account.
- Customer: shall mean any natural person or business entity with whom Foleon and its employees deal in the course of its business, including representative(s), agent(s), successor(s) visitors of the Foleon Website, and persons with access to an Account.
- Database: the personal and other related data of its Customers collected by Foleon.
- Foleon: shall mean Foleon Inc.
- Intellectual Property Rights: all intellectual property rights and related rights, such as copyrights, trademarks, patent rights, design rights, trade secrets and know how, trade names, and all other proprietary right arising or enforceable under any United States federal or state law, rule or regulation, or nonUnited States law, rule or regulation or international treaty.
- Know How: all information and knowledge regarding the Services, in particular regarding the ability to create a Magazine by means of Foleon’s software.
- Magazine: a digital magazine or brochure with content provided by the Customer which was created using the Services.
- Notification: the notification by any person, that content published using the Services might infringe Intellectual Property Rights, other third party rights, and/or might be violating applicable statutes or laws.
- Party or Parties: shall mean Foleon and Customer, individually or collectively.
- Services: the service that Foleon provides to Customers by means of which its Customers can create, process, manage, aggregate, publish and/or distribute content to the public at large; the Services include use of the Website and Foleon’s software for the creation of Magazines.
- User Name: the name or alias provided by the Customer during the registration procedure. Usually the Customer’s email address.
- Website: the Foleon.com Website, including all its subdomains and cloud platform services, by means of which the Services can be used.
Dated: May 21, 2019
228 East 45th Street, Suite GE
10017, NY - New York
United States of America