General Terms & Conditions
All Services are governed by the following Terms and Conditions.
1. Scope of services
These UL Terms and Conditions (“Terms”) shall apply to all offers, proposals, scope of work documents, order acknowledgments, and quotations (“Quotations”) issued by the UL company named in the Quotation (“UL Contracting Party” or “UL” or “we” or “us”) to the client company named in the Quotation (“Client” or “you”) for advisory, training, testing, other professional services associated with transaction security (“Services”), and, if applicable, any license to use the UL test tools and products associated with such Services (“License”) and related Technical Support Services (“TSS”). Web Services (defined below), and if applicable, TSS are subsets of Services, included in the definition of Services. If the Services include a License and TSS, the terms included in Exhibit A shall apply.
We do not guarantee, warranty or provide any assurance that our Services, our opinion, or findings with be recognized or accepted by third parties.
3. Pricing and Payment Terms
Unless otherwise stated in writing, all prices quoted by UL do not include V.A.T. and other government costs or fees, and are estimates only. UL may amend its pricing to adjust for inflation. Unless otherwise agreed in writing, payment shall be made upon the date of receipt of the invoice without deduction or set-off. UL may charge interest at 1% per month (12% per year), or the maximum legal rate if less than 1.0% per month, from the due date until paid fully and may suspend Services or a License for any past due accounts. Client agrees to pay reasonable collection cost, including attorneys’ fees, if necessary, in the event of late or non-payment.
4. Estimated Schedule and Pricing
Any time schedule and pricing terms set forth in this Quotation are estimates only and subject to change upon reasonable notice from us depending upon the specific project.
5. Client Responsibilities
Client will: (a) fulfill any Client responsibilities as specified in the Quotation; (b) ensure that all assumptions contained in the Quotation are accurate; (c) provide UL with reliable accurate and complete information as required to perform the Services; (d) ensure that all clients data, programs and files are backed-up and made available to UL; and (e) manage the selection, use, and application of the UL Services and License (“Client Responsibilities”). UL will be entitled to rely on all Client decisions, representations, and approvals made before and during the provision of Services. Nothing in these Terms will require UL to evaluate, provide advice on, modify, confirm, or reject such decisions, representations, or approvals. Client will manage the selection and use of its internet, data and telecommunication facilities (“Resources”), during the execution of the Services. UL shall under no circumstances be liable for losses or costs arising as a result of transmission errors, breakdowns or the non-availability of the Resources unless Client is able to demonstrate that these losses or costs are the result of UL’s gross negligence or willful misconduct.
Except as provided below, each party will not disclose the other party’s information obtained in confidence (“Confidential Information”) to third parties and will treat the other party’s Confidential Information with the same degree of care it employs to protect its own Confidential Information and in no event less than a reasonable standard of care. Confidential Information will not include information: (a) already known to the receiving party, (b) publicly available, (c) subsequently acquired by the receiving party from other sources without a breach of this Agreement, (d) disclosure that is necessary to perform the Services, (e) required to be produced by law or government order, or accreditation authority, or (f) to agencies, brands and/or credit card providers when required to fulfill the purpose of these Terms. UL may disclose Client’s Confidential Information to UL’s affiliates, agents and subcontractors, who shall be directed to maintain its confidentiality, in connection with performing the Services. Each party may disclose the other party’s Confidential Information when required to be produced pursuant to an order or command of any judicial, regulatory, or accreditation authority or when required by any common law or statutory duty.
If required, you shall provide us product/material samples for evaluation testing, the number and other details of the products/material samples required shall be as described in the Quotation. We will provide you with information on where to ship the product/material samples. Evaluation testing may destroy your product/material samples. We will return the samples to you at the completion of the evaluation testing, unless you instruct otherwise. Return shipping and insurance costs are the responsibility of the Client.
8. Web Services
9. Intellectual Property Rights
UL, its licensors or its own suppliers, does and shall remain the sole and exclusive owner of the software, data files, testing tools, hardware or other materials such as analyses, designs, documentation, reports, quotations and related preliminary material developed, made available to Client, or used in the provision of Services including all patents and patentable materials, trademarks, service marks, trade names, copyrights, methodologies, drawings, processes, algorithms, specifications, programing logic, pseudo code, software, tools, technologies, manuals including user, installation and operational guides, reports, ideas, concepts, trade secrets, and know-how embodied in any of the foregoing (the “UL Property”). The Client shall only acquire those rights to use the UL Property that are explicitly granted by these Terms. Any rights of use in the UL Property granted to the Client shall be non-exclusive, non-transferable to third parties and non-sub licensable.
Upon full performance by Client of the Client Responsibilities and payment of all fees and costs due, excluding UL test tools & products, Client will have a non-exclusive, right and authorization to use, produce, display, distribute, modify and make derivative works of: (i) the items (including reports or other results of the testing provided pursuant to the Services) specifically described as deliverables in the Quotation (the “Deliverables”); and (ii) any UL Property embodied therein solely as necessary for Client’s use of the Deliverables for Client’s internal business purposes, including, if any, the purpose(s) specified in the applicable Quotation. UL does and shall own and retain all right, title and interest in and to the Deliverables and all UL Property embodied therein. Client hereby acknowledges and agrees that any improvements, enhancements, modifications or changes made by Client alone or jointly with UL Contracting Party or other parties, resulting from or related to any comments or suggestions, whether written or oral, made by Client with respect to the Services or UL Property that are incorporated into the Services or Deliverables shall be the sole property of UL. UL reserves all rights not expressly granted under these Terms.
11. Use of Names and Marks
Except as otherwise authorized by us in writing, you will not use our name, abbreviation, symbols, trademarks, or service marks in connection with any advertising, promotions, or otherwise.
12. Limitation of liability
UL WILL PROVIDE ITS SERVICES AND PRODUCTS IN ACCORDANCE WITH THE PROFESSIONAL STANDARDS OF UL’S INDUSTRY. UL’S LIABILITY FOR ANY CLAIMS FOR LOSS, DAMAGE, OR EXPENSE OF ANY NATURE OR CATEGORY AND HOWSOEVER ARISING OUT OF THESE TERMS OR OUT OF THE SERVICES PERFORMED UNDER THESE TERMS AND/OR ANY FAILURE TO EXERCISE APPROPRIATE SKILL AND CARE WILL UNDER NO CIRCUMSTANCE EXCEED THE FEES RECEIVED FOR THE SPECIFIC SERVICES WHICH GIVE RISE TO SUCH CLAIMS OR $100,000 US DOLLARS, WHICHEVER IS LESS. UNDER NO CIRCUMSTANCE WILL UL HAVE ANY LIABILITY FOR ANY CLAIMS FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO: LOSS OF PROFITS, GOODWILL, USE, DATA, FUTURE BUSINESS, OR PRODUCTION; CLAIMS OF THIRD PARTIES; CANCELLATION OF CONTRACTS ENTERED INTO BY YOU; OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). SUCH LIMITATION AND EXCLUSION OF LIABILITY SHALL BE VALID TO THE FULLEST EXTENT PERMITTED BY LAW.
13. Client Indemnification
You will defend, hold harmless, and indemnify us and our officers, directors, trustees, employees, agents, or subcontractors against all claims made by any third party for loss, damage, or expense arising out of the performance or non-performance of any Services, or the Web Services, but excluding claims subject to Section 12 above.
14. No warranty
NO REPRESENTATION, WARRANTY, OR GUARANTEE, EXPRESS OR IMPLIED, IS INCLUDED IN THESE TERMS, OR IN ANY QUOTATION, REPORT, OR OTHER DOCUMENT PROVIDED UNDER THESE TERMS OR IN CONNECTION WITH THE SERVICES, INCLUDING, BUT NOT LIMITED TO: (i) ANY IMPLIED WARRANTY OF MERCHANTABLILITY OR FITNESS FOR A PARTICULAR PURPOSE, (ii) NON-INFRINGEMENT, AND (iii) THAT THE WEB SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
Neither party may assign any of its rights or obligations under these Terms to any other person without the other party’s written authorization. However, UL may, upon written notice, assign our rights and obligations under these Terms to any of our affiliates or subsidiaries.
16. Export Control
Client represents and warrants that Client (i) will not cause any UL Contracting party or its affiliates to violate any export, trade or other economic sanction law; (ii) will promptly advise UL if a project involves technology that is subject to any government controls, including, without limitation, U.S. export controls and will promptly supply all information needed to comply with those controls; and (iii) will make payment to UL Contracting Party for Services rendered under these Terms with funds obtained and through financial institutions and accounts in compliance with applicable laws concerning the prevention of money laundering, terrorist financing and other illicit activities, including, without limitation, those enforced by the United States.
17. Subcontracting and Personnel
We will be responsible for assigning and re-assigning our personnel, as appropriate, to perform the Services. For the duration of the engagement and for a period of twelve (12) months after the Services are completed, you will not actively solicit the employment of our personnel involved directly with providing the Services to you. You agree that we may subcontract the Services to third parties. We will provide as a term of any such subcontract that the subcontractor shall meet our current qualification requirements and will comply with our requirements for confidentiality, conflicts of interest, and ethical standards.
If any section of these Terms is held invalid, void, or unenforceable for any reason that section will be severed, and all other sections of these Terms will remain valid to the extent permissible under law.
These Terms along with the Quotation are the entire and complete agreement between the parties and supersede any other communications, representations, or agreements with respect to its subject matter. Under no circumstances will any preprinted, additional, or different terms and conditions on your requests for quotation, purchase orders, invoices, sales or marketing materials, emails, any acceptance communications, or other business documents apply to any Services or Quotation or bind us in any manner. Modifications that have not been made by us or that have not been accepted by us in a written or emailed confirmation from us are not accepted by us, and commencement of performance will not signify acceptance by us of any such modifications. Any such modifications are excluded from our agreement, and such modifications will not be a binding agreement on us.
20. Order of Precedence
Except for conflicts with Section 3 (Pricing and Payment Terms), these Terms will take precedence over any conflicting terms in any Quotation or any terms or conditions proposed by Client, including any such terms or conditions contained in any of Client’s purchase orders or other business documents.
21. Electronic Signature
These Terms and Quotation may be executed and delivered by facsimile, PDF, or by means of other electronic signature. Our electronic, digital, or hard copies of the Terms, your acceptance, and Quotations as signed, or otherwise accepted, by you will be the true, complete, valid, authentic, and enforceable copies of these documents. You agree that you will not contest the admissibility or enforceability of our copies in a court or any proceeding arising out of such documents.
22. Force Majeure
Neither party will be liable for any failure or delay in the performance of its obligations due to fire, flood, earthquake, elements of nature, or acts of God, acts of war, terrorism, riots, civil disorder, rebellions, or other similar cause beyond the reasonable control of the party affected, provided such default or delay: (i) could not have been prevented by reasonable precautions; (ii) cannot reasonably be circumvented: (iii) and the party hindered or delayed promptly notifies the other party describing the circumstance causing delay.
23. Governing Law
These Terms will be governed and interpreted by the laws of the State of Illinois, United States of America except if: (i) UL contracting Party’s principal place of business is Asia, Australia, or New Zealand, then Singapore law, and (ii) UL Contracting Party’s principal place of business is Europe, Middle East, or Africa, then Swiss law, without reference to the applicable jurisdiction’s choice of law principles.
Any dispute or disagreement, other than nonpayment of fees, relating to these Terms or the Services, will be settled by confidential, binding arbitration administered by the International Centre for Dispute Resolution of the American Arbitration Association (“AAA”) pursuant to the AAA Commercial Arbitration Rules and the Procedures for Large, Complex Commercial Disputes. The arbitration venue will be Chicago, Illinois, except if: (i) UL Contracting Party’s principal place of business is in Europe, Middle East or Africa the venue will be Zurich, Switzerland, and (ii) UL Contracting Party’s principal place of business is in Asia, Australia, or New Zealand, the venue will be Singapore, Republic of Singapore. The arbitration will be conducted before a panel of three (3) arbitrators. The arbitration panels will be selected as follows: the parties will request a list of ten (10) arbitrators drawn from the AAA’s panel of commercial arbitrators (who are experienced in and familiar with the AAA’s Procedures for Large, Complex Commercial Disputes). From this list, both parties will each choose one arbitrator. After they have been notified of their panel selection, the two (2) arbitrators will agree on a third arbitrator from the list of ten (10), who will be the chair of the panel, and the panel will be final. The decision of the majority of the arbitrators will be the panel’s decision. The arbitrators will not have the authority to add, change, or disregard any term of these Terms to award incidental, consequential, or punitive damages (including, but not limited to, loss of use, unjust enrichment, and/or lost profits), or exceed the remedies provided by the limitation of liability of these Terms. The panel’s decision will be binding and judgment on the arbitration award may be entered by a court of competent jurisdiction. Arbitration will be the final remedy for any dispute between the parties arising out of these Terms, provided, however, that nothing herein will prevent either party from seeking a court order for injunctive relief (in addition to other remedies) to stop or prevent misuse or misappropriation of its marks, confidential or proprietary information, or infringement of its intellectual property, in a court of law. All arbitrations will be conducted in English.
UL TEST TOOLS AND PRODUCTS LICENSING TERMS
This license (“License”) is made a part of and is subject to the UL Terms and Conditions (“Terms”)
UL hereby grants to Client a non-exclusive, terminable, revocable, royalty-free, nontransferable and limited license (“License”) to access and use the UL test tools and products solely for Client’s own internal business purposes. UL owns all right, title and interest in or to, or has licensed, all elements of the UL test tools and products, including, without limitation, any updates, new releases, modifications, improvements or derivative works as well as the delivery systems supporting the UL test tools and products. This License grants no title or rights of ownership in the UL test tools and products, or any elements, modifications, improvements or derivative works thereof, and all rights not expressly granted to Client herein are reserved by UL. The License does not include the right to allow access, sub-license, distribute, sell or supply to any third party or affiliate, modify, adapt, amend, incorporate, merge or otherwise alter the UL test tools and products in any manner. Client shall not remove or replicate any logo, copyright or proprietary notices, legends, symbols, labels, watermarks, signatures or any other like marks affixed to or embedded in the UL test tools and products. Client shall not carry out any act or omission or permit any act or omission to take place that infringes or is likely to infringe any intellectual property rights owned or used by UL.
Components of the UL test tools and products or the Services may be subject to third party license terms (“Third-Party Licenses”). The Client agrees to the terms of such Third-Party Licenses. UL shall provide Client with a copy of the Third Party License terms upon request. If the Third Party License terms are deemed not to apply for any reason whatsoever, or are inapplicable to the Services, the terms of this License shall apply.
The term of this Agreement and License (the “Term”) shall begin upon the date first written above and, unless sooner terminated pursuant to the terms of this Agreement, shall continue for one (1) year unless either party notifies the other in writing of its desire to terminate this Agreement.
Client shall keep all passwords and any other access credentials provided by UL to Client strictly confidential and secure, and shall not disclose such passwords to any other person or entity without the prior written consent of UL. In the event that Client becomes aware or has a suspicion that a third party is improperly utilizing Client’s password, Client must notify UL immediately.
A.4 UL MARKS
Client agrees that all of UL’s trademarks, certification marks, trade names, service marks and other UL logos and brand features (collectively, “UL Marks”) are the exclusive property of UL. Without UL’s prior written permission, Client agrees not to display or use the UL Marks in any manner. Without limiting the generality of the foregoing, nothing herein shall be construed as granting Client any rights to use any UL certification marks or other trademarks.
A.5 DEVELOPED SOFTWARE
If the Quotation includes Services for developed software (“Developed Software”), UL shall perform the software development activities based on specifications and data provided by Client. Client shall be responsible for the accuracy, completeness and consistency its specifications. Client hereby acknowledges and agrees that any Developed Software, and any improvements, enhancements, modifications or changes proposed or made by Client alone or jointly with UL or other parties shall be owned by UL, and shall be subject to the terms of this License Agreement. If the Developed Software is capable of stand-alone functionality, and is not otherwise integrated with UL Property, the parties may enter into an assignment of the Developed Software to Client on terms agreeable to both parties.
Upon receipt of written request by Client, UL shall provide to Client documentation for the Developed Software. Such documentation shall be subject to this License and Agreement, including the Client’s confidentiality obligation under this Agreement.
A.6 HARDWARE AND ACCESSORIES
If the Quotation and Services require UL to install, configure and/or connect any hardware or accessories as set forth in a Quotation, UL Contracting Party shall provide all such services on the basis of a reasonable efforts obligation. UL shall not be obligated to replace or repair defects in hardware or accessories, unless the parties have entered into a separate service contract covering support and maintenance for hardware or accessories. All warranties that the hardware or accessories as delivered are fit for a particular purpose, and all other warranties express or implied, shall be excluded to the fullest extent permitted by law. UL makes no representation or warranties on third party hardware and accessories, and such third party hardware and accessories shall be subject to the third party’s terms.
A.7 TECHNICAL SUPPORT SERVICES
UL shall provide TSS to Client as specified the Quotation. TSS shall include:
(a) Access to the Helpdesk for questions and support with operational problems with the installation of new releases of the UL test tools and products. The Helpdesk is open Monday through Friday from 8:30h – 16.30h CET, except on public holidays. The Helpdesk can be contacted via the UL Service Desk portal (https://support.testtools.ul.com/).
(b) New product releases based on international standards and specifications (e.g., from associations such as ISO, EMVCo, Visa, MasterCard, 3GPP, ICAO). New product releases will be updated accordingly if these standards and specifications are modified. UL shall make new product releases available to Client via download. Certain new product releases will be backward compatible.
(c) Hardware product and accessories are subject to a three (3) year limited warranty, starting from the date of delivery. In cases of problems with hardware or accessories delivered by UL to Client, UL and Client shall troubleshoot problems. If the hardware products and accessories are under warranty, and UL cannot resolve the problem, UL shall send new hardware to Client within (3) three working days. Client shall return its old hardware or accessory to UL. Transport costs shall be borne by UL.
(d) In the case that Client discovers an error in the software, UL shall investigate the issue and use commercially reasonable efforts to provide a solution, which shall include error fixes or new releases of UL test tools. UL will keep Client informed of its efforts.
The TSS annual fee is equal to 20% of the list price of the UL test tools licenses, or hardware or accessories. TSS fees shall be charged in advance, thirty (30) days before the commencement of the next succeeding year, and shall be paid by Client not later than the first day of that next succeeding year. Where the TSS fee does not cover an entire year, the fee shall be calculated on a pro rata basis.
TSS shall not include the fixing of errors, defects or shortcomings arising from or related to: (a) usage errors or the improper use of the software, including errors that occur during the data input process or in the data itself; (b) changes to the software that have not been approved in writing by UL; (c) use of the software contrary to the application conditions or contrary to the instructions in the user documentation; (d) changes to the errors, defects or shortcomings in the hardware or software that is not included within the scope of the maintenance work to be carried out by UL Contracting Party; (e) failure by Client to have maintenance work carried out on the software in a timely manner; (f) use of software that is no longer maintained by UL; (g) the recovery of scrambled or lost data; or (h) other causes that are not attributable to UL.
All other support or maintenance provided by UL that is not covered by TSS shall be invoiced to Client in accordance with UL’s standard rates and costs.
The Agreement (and the License) shall terminate in the event that Client breaches any terms and conditions thereof, and, if curable, fails to cure such breach within thirty (30) days of notice from UL. At the time of such termination, Client shall cease access and use of the test tools and products and destroy and delete any passwords. At UL’s request, Client shall provide UL with a letter confirming same. Client acknowledges and agrees that UL may suspend access to and use of the UL test tools and products in the event that UL reasonably believes that Client has breached the terms of this License including, without limitation, any failure to keep Client’s password strictly confidential and secure.
Any notice required or permitted to be given by either party under this Agreement shall be in writing and shall be personally delivered or sent by nationally recognized overnight commercial courier service. All notices to UL shall be addressed as follows:
Attn: General Counsel
333 Pfingsten Road
Northbrook, IL 60062 USA
Fax No.: (847) 498-3789