General Terms and Conditions of Sale
These General Terms and Conditions of Sale (“GTCS”) govern the contractual relationship between Wacom India Pvt. Ltd. (“WACOM”) and the Customer regarding the use of the Wacom Marketplace and the Inkspace (hereinafter collectively referred to as “Marketplace”) and for all contracts for products and services concluded on the Marketplace between WACOM and the Customer.
1 Subject of the contract
1.1 WACOM allows registered WACOM Single Sign-On Customers free access to the Marketplace, where Customers are able to purchase the products of various providers centrally from WACOM (“Products”). These Products may be “Software as a Service” offers, locally installed (mobile or stationary) applications or computer programs, or subscriptions for services. The Products may be WACOM’s own products, Products of companies associated with WACOM, or third-party Products (in each case “Provider”).
2 Provision of products
2.1 WACOM may accept or reject a Customer’s order for a Product, as determined by Wacom in its discretion. The Products may be subject to additional terms as stated in the Product’s description provided and in the Terms and Conditions of Licence and Use, if any, provided by WACOM for the Product. If WACOM accepts a Customer’s order, WACOM will provide access to the Product via the e-mail address stated by the Customer during the order process.
2.2 Products may be provided directly by WACOM or by authorized third-party Providers.
3 Granting of rights
3.1 Rights for Products purchased by the Customer shall be granted pursuant to the Terms and Conditions of Licence and Use for the relevant Product, which are provided by WACOM to the Customer prior to conclusion of the purchase and which the Customer must accept prior to purchasing the Product. Unless otherwise expressly stated in the respective Terms and Conditions of Licence and Use, rights shall be granted exclusively by the respective Provider.
3.2 Customers may be required to accept the respective Terms and Conditions of Licence and Use of the Provider before accessing a Product.
4 Duties and obligations of the Customer
4.1 The Customer shall safeguard all access data (e.g., any applicable license keys) provided by WACOM and protect said data from unauthorised third-party access.
4.2 The Customer shall make regular, risk-appropriate back-up copies of all data submitted to WACOM or its Providers in connection with using the Products.
4.3 The Customer shall comply with all applicable laws. The use of Products for the transmission, storage, dissemination or other use of content that is illegal, immoral, sexually offensive, insulting, or that incites hatred and violence, is prohibited.
4.4 The Customer shall not use the Products in any way that could compromise their data security and integrity. In particular, the Products may not be used for spamming, illegal manipulation of data or cyber attacks of any kind whatsoever.
4.5 In the event of a suspected breach of Section 4.3 or 4.4, WACOM may temporarily block the Customer’s access to the Products.
4.6 Where a third party claims that the data or contents provided by the Customer within the scope of the use of products are in violation of law, WACOM shall be entitled to block said contents either completely or temporarily. In such cases, WACOM shall request that the Customer cease the violation or provide evidence of the legality of the contents within a reasonable period of time. If the Customer fails to comply with this request or if he/she is unable to provide sufficient evidence of the legality of the contents, WACOM shall be entitled to terminate the contract without any prior notice.
4.7 Customer shall indemnify WACOM from all third-party claims that are asserted against WACOM arising out of or related to a breach of these GTCS or the breach of any third party license or other agreement. This indemnification shall also include all defense costs (including reasonable attorneys’ fees), court fees, fines and necessary expenses that are reasonable and customary in the industry. WACOM shall inform Customer without delay in written or text form of any claims asserted by third parties and shall conduct the defense in consultation with the Customer.
5.1 The Customer shall pay for Products according to the schedule noted in the Product description.
5.2 The prices are final prices including the amount equivalent to the applicable Consumption Tax and Local Consumption Tax.
6 Term and termination
6.1 The term of Customer’s access and use of a particular Product is defined on the Product description.
6.2 Either party may terminate these GCTS upon 30 days’ written notice of material breach by the other party.
6.3 The termination of Customer’s use of one Product will not affect other Products the Customer may have licensed or purchased, unless WACOM expressly terminates these GTCS overall. Termination will not relieve Customers of the obligation to pay for Products up to the effective termination date.
6.4 Notice of termination must be made in writing.
7 Limited Warranty
7.1 With respect to WACOM’s own Products, WACOM warrants to the Customer that such Product will substantially contain the functionality described in its description, and when properly installed and/or used on a device meeting the specifications set forth in, and operated in accordance with, any such description, will substantially perform in accordance therewith, for 90 days from the date of purchase.
7.2 With respect to any Products provided by third parties, the warranty (if any) shall be described in the Terms and Conditions of License and Use for the particular Product. THE FOREGOING WARRANTIES DO NOT APPLY TO ANY THIRD-PARTY PRODUCTS.
7.3 If Customer has a warranty claim during the period specified in Section 7.1, WACOM will, subject to Customer’s prompt notification of WACOM in writing of such claim, either: (a) repair or replace the Product, provided that Customer provides WACOM with all information WACOM requests to resolve the reported failure, including sufficient information to enable the WACOM to recreate such failure; or (b) refund the fees paid for such Product (in this case these GTCS are deemed to be terminated), subject to Customer's ceasing all use of and, if applicable and if requested by WACOM, returning to WACOM all copies of the Product. The remedies set forth in this Section 7.3 are Customer's sole and exclusive remedy and WACOM's sole liability under the limited warranty set forth in Section 7.1.
7.4 EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7.1 AND 7.2, THE PRODUCTS ARE PROVIDED TO CUSTOMER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY FROM WACOM OF ANY KIND.
8 Limitation of Liability
8.1 (a) IN NO EVENT WILL WACOM'S COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THESE GTCS EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER TO WACOM PURSUANT TO THESE GTCS; AND (b) IN NO EVENT WILL WACOM BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGE; OR LOST REVENUES OR PROFITS; provided, however, that this limitation of liability shall not be applicable to the case that such damages are caused due to Wacom’s intent or gross negligence.
9 Amendments to the General Terms and Conditions of Business
These GTCS may be amended by WACOM from time to time. WACOM shall provide a Customer with the amended terms at least 30 days before such amended terms are effective. If Customer does not reject such amended terms before the effective date, Customer is deemed to have accepted such amended terms.
10 Final provisions
10.1 These GTCS constitute the sole and entire agreement between WACOM and Customer with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. Any amendments or ancillary agreements to this contract must be made in writing.
10.2 The contract language is English. Translations into other languages are solely for the purpose of comprehensibility and are not legally binding.
10.3 These GTCS are governed by and construed in accordance with the laws of India. Any legal suit, action or proceeding arising out of or related to these GTCS or the licenses granted hereunder shall be instituted exclusively in the courts located in New Delhi.
Status as of: March 2018