Terms of Service
TDK Management Services GmbH, Rosenheimer Strasse 116 b, 81671 Munich, Germany ("Company","we") provides you ("Customer", "you") with services to detect electromagnetic compatibility (EMC) and electromagnetic interference (EMI) issues in your printed circuit board (PCB) including recommendations how you may resolve them ("Service (s)"). The specific content of your Service depends on the pricing model you have selected. Services are provided as software as a service in combination with online and offline activities. Company and Customer are each individually referred to as a "Party" and collectively as "Parties".
2. Free Trial.
If you register for a free trial, we will make the applicable Service available to you on a trial basis free of charge until the earlier of (a) the delivery of the recommendation report or (b) the start date of a paid Subscription Plan or (c) after 60 days. Unless you purchase a subscription to an applicable Subscription Plan before the end of the free trial, all your data may be permanently deleted at the end of the trial, and we will not recover it.
3. Pricing and Payment.
The Customer shall be responsible for paying all fees associated with the Service as per the pricing model selected. These fees are to be paid in Euro and are exclusive of any sales, value-added, and other taxes. The Customer is also responsible for any and all taxes associated with the Service, including but not limited to VAT. In the event that the Customer is required by law or treaty to withhold taxes, they shall inform the Company in writing as soon as the obligation arises. The Customer shall provide the Company with all necessary information, documentation, and confirmation of withholding tax payments on the Company’s behalf. If necessary, the Customer shall assist the Company, at no additional cost, in obtaining any mitigations, exemptions, and/or refunds as may be available under applicable law. All fees are to be paid in full, without deductions, and are due either (i) in advance at the start of the Service or (ii) within 7 (seven) days of the Customer’s receipt of Company’s invoice. If the Customer fails to pay any fees when due, we may immediately terminate this Agreement.
4. Term and Renewal.
The term for your Service depends on the Subscription Plan you have selected. Your initial subscription term will be specified in your Order, and unless otherwise specified in your Order, your subscription will automatically renew for the shorter of the subscription term, or one year. Pay-per-use plans will not be renewed automatically. Long-term plans will renew automatically. To prevent renewal of your Long-term plan, you must give written notice of non-renewal, which must be received before the next renewal period begins. The right to extraordinary termination (for cause) shall not be affected.
5. Your Support.
In order to provide our Services, we depend on your support. You must ensure the quality, consistency, accuracy and completeness of the data that you upload on our webpage or provide otherwise to us. We will rely on any information received from you and have no obligation to verify any data unless otherwise agreed.
6. Service Level.
All Services are provided in the English language unless otherwise specified or agreed. All services are provided as business services (B2B). All Services are provided on an"as is" and "as available" basis and we will make commercially reasonable efforts to detect electromagnetic compatibility (EMC) and electromagnetic interference (EMI) issues in your printed circuit board (PCB) and to provide recommendations to resolve them. "Commercially reasonable efforts"means that we will apply the state of art skills and due care that a similar person in the industry would apply using our existing resources. Please understand that the analysis of your data depends on a multitude of factors such as quality, consistency, accuracy and completeness of your data and in certain cases, we may despite our reasonable commercially efforts not be able to make recommendations to resolve potential EMC/EMI issues in your PCB board and will inform you accordingly. In any of those cases, you may upload other or changed data but have no right that we provide any detection or recommendation or pay any compensation for damages, costs and expenses. The delivery dates of the recommendation report are a timely indication based on our experience and the final delivery date may, depending on circumstances, vary. Any late delivery will not be regarded as delay in delivery and not result in any right for compensation for damages, costs and expenses.
7. Limitation of Warranty.
Company makes no warranties, representations or guarantees of any nature with respect to the Services. In particular, Company provides only Services to detect EMC and EMI issues and give recommendations, but Company does not promise to resolve such issues. To the extent permitted by mandatory applicable law, Company disclaims all warranties representations or guarantees, expressed or implied for the Services and in connection therewith and Customer’s or any third party’s use and reliance thereof, including, without limitation, any implied warranties of merchantability, fitness for use or particular purpose, regardless whether known or anyhow visible for Company.
8. Protection of Confidential Information.
We know that the treatment of your confidential information embedded in your data is of utmost importance. Any technical and commercial information received from you in any form ("Confidential Information") will be only used for the Services by our personnel with a need to know and not be disclosed to any third party. Please note that we may need also to engage some of our Affiliates and external companies as sub-contractors to provide your with our Services and the confidentiality arrangements between any such third parties shall be at least of the standards set forth under these terms and conditions and shall be concluded prior to the exchange of any Confidential Information. The foregoing shall not apply to any Confidential Information that: (i) is or becomes public knowledge through no fault, omission, or other act in violation of this Agreement; (ii) was lawfully in our possession prior to the time of disclosure without restriction of disclosure or use; (iii) is obtained without restriction of disclosure or use from a third party lawfully entitled to possession of such Confidential Information and under no obligation of confidentiality in respect of such Confidential Information; (iv) was independently developed by us or for us or any of our Affiliates without the aid or use of any Confidential Information; or (v) has been generally cleared for disclosure to third parties by written notice; or (vi) is subject to any mandatory disclosure obligation in connection with a legal, regulatory or administrative proceeding or a requirement under any law or court order. The foregoing provisions apply vice versa for any of Company’s and Company’s Affiliates’ Confidential Information. Customer acknowledges that Company and its Affiliates may currently or in the future develop information or receive information from third parties that is similar to Confidential Information of Customer, and nothing in this Agreement shall prohibit the Company and its Affiliates from making or having made any development, including, without limitation, products, concepts, systems, technologies, processes or techniques that are similar to or compete with those contemplated by or embodied in the Customer’s Confidential Information, or explore such similar opportunities with third parties, provided that the Company does not violate any of its obligations under these terms and conditions.
9. Use of Customer Data.
For the purpose of providing and improving Services, Customer grants to Company a non-exclusive, non‑transferable, irrevocable, royalty-free, fully paid-up, worldwide right to any information owned or controlled by Customer that is collected, downloaded, or otherwise received by Company from Customer such as Printed Circuit Board (PCB) layout data, design files and other product information including any Intellectual Property Rights therein ("Customer Data"). The aforementioned right includes in particular the right to copy, store and modify Customer Data to combine it with other works and to use it for any other types of use currently known or unknown for the Services. The aforementioned right is sub-licensable to Company’s Affiliates and sub-contractors for the sole purpose of providing Services and associated research and development.
10. Use of Service Results.
Company shall exclusively own and receive all rights, title or interest, in including Intellectual Property Rights in the "Service Results", i.e. the result of the detection of EMC and EMI issues and the recommendation how to resolve them. For the avoidance of doubt, Service Results do not contain Customer Data and associated rights, title or interest including Intellectual Property Rights. To enable Customer to use the Service Results to resolve EMC and EMI issues in Customer Data, Company grants Customer a non-exclusive, sub-licensable, non-transferable, irrevocable, royalty-free, fully paid-up, worldwide right. The aforementioned right does not include any right, title or interest in Company’s "EMC-EMI Expertise", i.e. any processes, material, documentation, methods, know-how or other information owned or controlled by the Company relating to the analysis, identification or modification of EMC and EMI issues and Intellectual Property therein.
11. Improvement of Services.
Company is always looking for ways to improve the Services and to make them smarter, faster, more secure, integrated, and useful as well as to create new services and develop new products that benefit Company’s customers. One of the most efficient ways to do so, is to analyse Customer Data, receive Feedback from Customer, apply general concepts and ideas and to apply the respective learnings across Company’s Services. Nothing contained in these terms and conditions shall restrict Company, its affiliates and sub-contractors from the use of any Resultant Data, Customer Feedback and Residual Know-How for the sole purpose to conduct and improve Company’s Services, provided that in doing so Company its affiliates and sub-contractors does not (i) infringe the Intellectual Property Rights of Customer other than those licensed under this Agreement or (ii) breach its confidentiality obligations towards Customer under this Agreement. "Resultant Data" means any data and information derived from Customer Data using analytic techniques that hash, filter or otherwise scrub and transform Customer Data for analytic, diagnostic, statistic and performance measurement purposes in a compiled, aggregated and anonymised state so that the original Customer and original Customer Data cannot be reverse engineered or otherwise identified. "Customer Feedback" shall mean any feedback of Customer regardless of whether written, oral or visual to the Services including but not limited to quality, suitability and efficiency in respect of the detection, identification of, recommendation and further advice on how to fix or on avoid EMC and EMI issues. "Residual Know-How" means any general ideas, concepts, know-how, methodologies, processes, technologies, algorithms or techniques contained in or derived from Customer Data and retained in the undocumented general mental impressions of Company its affiliates and sub-contractors.
The Customer warrants that Customer Data and Feedback is free of third-party rights and does not infringe any Intellectual Property Rights of third parties. In case of any (out of or in court) allegation of infringement of third party rights, Customer will defend, hold harmless, and indemnify Company and its Affiliates and sub-contractors from and against any and all claims, losses, damages, injuries, fines, penalties, expenses, costs including court costs and attorneys’ fees, charges and other liabilities. Each Party shall promptly notify the other Party in case it has learned about any actual or potential infringement allegation.
13. Limitation of Liability.
Company shall not liable for any costs, expenses and damages, for whatever legal reason, contract, tort or otherwise, in the event of a breach of any of its obligations. This exclusion of liability does not apply insofar as liability is mandatory by statutory law, as well as: (i) for an intentional breach by Company; (ii) in the event of injury to life and health; (iii) as far as Company has assumed a guarantee; (iii) in the event of liability under the German Product Liability Act; (iv) for breach of an essential contractual obligation, i.e. an obligation imposed on Company under this Agreement that protects the Customer and is essential for the performance of this Agreement and on which a customer may reasonably rely upon. In the event of negligence Company is only liable for the contractually typical and foreseeable damage, even in the event of a breach of an essential contractual obligation. Company does not stand in for any economic, financial or other consequences which Customer may experience as a result of the provision of the Services. Company’s overall liability for whatever legal reason, contract or tort, is limited to a maximum amount of €10,000 for each individual case of damage, except for cases (i) to (ii) above. The liability limitations in this Section also applies in favour of Company’s and its Affiliates’ legal representatives, employees, directors, officers, subcontractors and performing agents.
Unless expressly set forth otherwise in the Agreements, the following terms with an initial capitalized letter, either in the singular or plural form, shall have the following meaning: "Affiliates" means any company that is directly or indirectly Controlling, Controlled by or that is Controlled by the same company that Controls a Party while "Control"or "Controlled" means any direct or indirect ownership of at least more than fifty percent (50 %) of the stock; "Intellectual Property Rights" means all of the following anywhere in the world and all legal rights, title or interest in, under or in respect of the following arising under any laws, whether or not filed, perfected, registered or recorded, including all renewals: (a) all patents and applications for patents, including all provisional applications, statutory invention registrations, inventions, discoveries and invention disclosures (whether or not patented), and all related continuations, continuations-in-part, divisions, reissues, re-examinations, substitutions, and extensions thereof; (b) all published and unpublished works of authorship whether or not copyrightable, copyrights, copyright registrations and copyright applications, copyrightable works and all other corresponding rights; (c) all designs, design registrations and design applications and all other corresponding rights; (d) all trade names, logos, internet addresses and domain names, trademarks and service marks and related registrations and applications (including intent to use applications), all other indicia of commercial source or origin, and all common law rights thereto, and the goodwill associated with all of the foregoing; (e) all inventions (whether patentable or unpatentable and whether or not reduced to practice), Know-How, technical, scientific and other know-how and information, knowledge, technology, means, methods, processes, practices, formulas, instructions, skills, techniques, procedures, experiences, ideas, technical assistance, drawings, assembly procedures, apparatuses, specifications, data and results (including pre-clinical and clinical trial results), manufacturing procedures and test procedures, technical data, trade secrets, confidential business information, research and development information, financial, marketing and business data, pricing and cost information, business and marketing plans, advertising and promotional materials, customer, distributor, reseller and supplier lists and information, correspondence, records, and other documentation, and other proprietary information of every kind (whether or not embodied in any tangible form); (f) all computer software (including source and object code), firmware, development tools, algorithms, files, records, technical drawings and related documentation, data and manuals; (g) all databases and data collections; (h) all copies and tangible embodiments of any of the foregoing (in whatever form or medium); and (i) all rights to sue at law or in equity for all claims or causes or actions arising out of or related to any past, present or future infringement, misappropriation or violation of any of the foregoing, including the right to receive all proceeds and damages therefrom; "Know-How" shall mean non-patented practical information resulting from knowledge, experience or testing which is kept secret that is to say not generally known or easily accessible, and that derives independent economic value, actual or potential, from not being generally known or readily ascertainable by others who can obtain economic value from its disclosure or use, including but not limited to drawings and associated technical information, plans, descriptions, flow charts, process data, test reports, project schedules, other technical information, specifications, instructions, processes and formulae, including all biological, chemical, pharmacological, biochemical, toxicological, pharmaceutical, physical, safety, quality control and preclinical data.
15. Data Privacy.
16. No Benefits to Third Parties.
Neither this Agreement nor any provision contained in this Agreement is intended to confer any rights or remedies upon any person other than the Parties.
17. Independent Contractors.
The Parties are independent contractors. Neither Party to this Agreement is the principal or agent, franchiser or franchisee, or employer or employee of the other Party, and the relationship of the Parties does not constitute a partnership, joint venture, agency or franchise. Neither Party nor their Affiliates, respective Subcontractors or personnel shall have the power or authority to act as agent or attorney-in-fact of, or bind the other Party in any way, without the other Party's prior written consent.
18. Entire Agreement.
Customer cannot assign any rights and obligations under this Agreement without the prior written consent of Company. Customer agrees that Company can assign this Agreement and any rights and obligations hereunder to any third party in the event of a restructuring, divesture or sales of Company’s business related or associated with the Services.
20. Amendments and Modifications.
This Agreement may only be amended, modified or supplemented by an instrument in writing executed by the Parties. Such writing requirement may only be waived through an instrument in writing executed by the Parties.
21. Force Majeure.
"Force Majeure Event" means any event beyond a Party's reasonable control, which event wholly or partially prevents the respective Party from performing its obligations under this Agreement, including but not limited to major fires, explosions, floods, storms, insurrections, wars, earthquakes, strikes, epidemics, pandemics, cyberattacks, trade wars and trade bans. The Party affected by the Force Majeure Event will inform the other Party without undue delay about the Force Majeure Event and use reasonable endeavors to ensure that the effects of the Force Majeure Event on the other Party's and on its own obligation to perform under this Agreement are as minor and brief as possible and to maintain its own ability to perform, to the extent possible. As soon as reasonably possible after the effects of Force Majeure Events are eliminated, the Party affected by a Force Majeure Event must subsequently perform the obligations it was prevented from performing by those effects unless that subsequent performance is not reasonable or possible. In cases in which it is not possible or reasonable for a Party to perform its obligations under this Agreement due to a Force Majeure Event, the respective other Party shall not be entitled to assert claims for damages.
Should any provision of this Agreement, or any provision incorporated into this Agreement in the future, be or become invalid or unenforceable, the validity or enforceability of the other provisions of this Agreement shall not be affected. The invalid or unenforceable provision shall be deemed to be substituted by a suitable and equitable provision which, to the extent permitted by law, comes as close as possible to the intent and purpose of the invalid or unenforceable provision. The same shall apply: (i) if the Parties have, unintentionally, failed to address a certain matter in this Agreement; in this case a suitable and equitable provision shall be deemed to have been agreed upon which comes as close as possible to what the Parties, in the light of the intent and purpose of this Agreement, would have agreed upon if they had considered the matter; or (ii) if any provision of this Agreement is invalid because of the scope of any time period or performance stipulated herein; in this case a legally permissible time period or performance shall be deemed to have been agreed which comes as close as possible to the stipulated time period or performance.
23. Governing Law and Dispute Resolution.
This Agreement shall be subject to the substantive law in force in Germany without reference to its conflicts of law provisions and the CISC to the extent applicable. All disputes arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be finally settled by arbitration under the Rules of Arbitration of the International Chamber of Commerce, Paris ("Rules") by one arbitrator appointed in accordance with the said Rules. The place of arbitration shall be Munich. The procedural law of Germany shall apply where the Rules are silent. The language to be used in the arbitration proceeding shall be English. The right to obtain injunctive relief before state courts shall not be excluded.
This Agreement and any amendment may be executed in one or more counterparts, all of which shall be considered one and the same agreement, it being understood that all Parties do not need sign the same counterpart. This Agreement and any amendment may be executed by electronic expression of willingness (e.g. online on the website of Company by clicking a button or ticking a box), electronic signature, a portable document format (e.g. pdf), or by any other electronic means or by combination of such means and delivered electronically (e.g. by e-mail, download link) the Parties agree that such electronic means shall be valid, binding and have evidence to the same extent as an original handwritten signature or stamp.
Customer had the opportunity to read this Agreement before accepting it.