If Customer is contracting with a Talend Entity located in any country specified below, then, the applicable subsection sets forth specific provisions as well as exceptions to the terms and conditions of this Agreement.
12.1: United States.
12.1.1 Government Rights. The Talend Software and/or Talend Cloud Services and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212(b), as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Talend Software, the Talend Cloud Services and Documentation by the U.S. Government shall be governed solely by the terms and conditions of this Agreement consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202.
12.2.1 Language. The Parties to this Agreement have agreed that this Agreement as well as any document or instrument relating to it be drawn up in English only but without prejudice to any such document or instrument which may from time to time be drawn up in French only or in both French and English. Les Parties aux présentes ont convenu que la présente Convention ainsi que tous autres actes ou documents s’y rattachant soient rédigés en anglais seulement mais sans préjudice à tous tels actes ou documents qui pourraient à l’occasion être rédigés en français seulement ou à la fois en anglais et en français. The English language shall be controlling in all respects, and all versions hereof and any other language shall not be binding to the Parties hereto. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
12.2.2 Applicable law. Customer acknowledges that the Talend Software and Talend Cloud Services are subject to Canadian export control laws and regulations, including the Export and Import Permits Act (Canada).
12.2.3 Payment. The phrase “Any amount not paid when due may be subject to interest at the rate of one and one half percent (1.5%) per month or, the maximum rate permitted by law, whichever is less, determined and compounded on a daily basis from the date due until the date paid” in section 4.3 is replaced by the following phrase: “Any amount not paid when due may be subject to interest at the rate of five (5%) per annum or, the maximum rate permitted by law, whichever is greater, determined and compounded on a daily basis from the date due until the date paid.”
12.3.1 Payment. The phrase “Any amount not paid when due may be subject to interest at the rate of one and one half percent (1.5%) per month or, the maximum rate permitted by law, whichever is greater, determined and compounded on a daily basis from the date due until the date paid” in section 4.3 is replaced by the following phrase: “Any amount not paid when due may be subject to interest calculated at the most recent European Central Bank refinancing rate plus 10 points, plus a fixed collection penalty of € 40 per invoice.”
12.4.1 Warranty. The phrase “Talend warrants to Customer that for a period of sixty (60) days from the Effective Date” in section 7.1 is replaced by the following phrase “Talend warrants to Customer that for a period of twelve (12) months from the Effective Date”.
12.4.2 Payments. The phrase “Any amount not paid when due may be subject to interest at the rate of one and one half percent (1.5%) per month or, the maximum rate permitted by law, whichever is greater, determined and compounded on a daily basis from the date due until the date paid” in section 4.3 is replaced by the following phrase: “Any amount not paid when due may be subject to interest calculated at the most recent German Federal Bank refinancing rate plus 9 points, plus a fixed collection penalty of € 40 per invoice.”
12.5: The Netherlands
12.5.1 Warranty. The phrase “The applicability of Section 7:17 (et seq.) of the Dutch Civil Code is expressly excluded if the Customer is not a consumer.” is added to section 7.1.
12.6: United Kingdom
12.6.1 Third Party Rights. Nothing in this Agreement shall confer, nor is intended to confer, any enforceable right on any third party under the Contracts (Rights of Third Parties) Act 1999 except as otherwise expressly so stated.
12.6.2 Payments. The phrase “Any amount not paid when due may be subject to interest at the rate of one and one half percent (1.5%) per month or, the maximum rate permitted by law, whichever is greater, determined and compounded on a daily basis from the date due until the date paid” in section 4.3 is replaced by the following phrase: “Any amount not paid when due may be subject to interest calculated at the most recent Bank of England base rate plus 8 points, plus a fixed collection penalty of up to £ 100 per invoice.”
12.7.1 GST. (a) Terms used in this Section have the meaning given to them under the A New Tax System (Goods and Services Tax) Act 1999 (Cth). (b) To the extent that a party makes a taxable supply under this Agreement, the consideration payable by the other party under this Agreement represents the value of the taxable supply for which payment is to be made. (c) Subject to Section 12.7.1(d) below, if a party makes a taxable supply under this Agreement for a consideration which, under Section 12.7.1(b) above, represents its value, then the other party must also pay, at the same time and in the same manner as the value is otherwise payable, the amount of any GST payable in respect of the taxable supply. (d) A party’s right to payment under Section 12.7.1(c) above is subject to a valid tax invoice being delivered to the other party.
12.7.2 Warranties. The warranties set out in Section 7.2 above and Section 6 of the Cloud Services Addendum are in addition to any legal rights and remedies the Customer may have which may not be excluded by law, such as the consumer guarantees under Schedule 2 of the Competition and Consumer Act 2010 (Cth) (“Australian Consumer Law”). For the purposes of this Section 12.7, “you” and “your” means the Customer, and “we” and “our” means Talend. The warranties set out in Section 7.1 above shall include the following: (v) any act, default or omission of, or any representation made by, any person other than Talend or an employee or agent of Talend, (vi) a cause independent of human control that occurred after the goods left Talend’s control
12.7.3 Making a Warranty Claim. If the Customer has a faulty good or service and it is covered by the warranty under Section 7 above or Section 6 of the Cloud Services Addendum, the Customer should contact Talend or send the full details of the claim to Talend as set out in Section 12.7.5. The Customer will be responsible for all expenses it incurs in making a warranty claim and Talend will bear the expenses of any inspection and processing of the Customer’s claim. Repair of goods supplied by Talend may result in loss of some or all of the data. For this reason, the Customer should ensure that it saves a copy of any of the Customer’s data held on the good before providing it to Talend for repair .
12.7.4 Consumer Guarantees. If the Customer is a “consumer” for the purposes of the Australian Consumer Law, our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure. To the extent that Talend is able to limit its liability for a failure to comply with the consumer guarantees under the Australian Consumer Law, Talend limits its liability, at Talend’s option, to: (i) in relation to goods it has supplied to the Customer: (A) the repair of the good; (B) the replacement of the good or the supply of equivalent goods; (C) the payment of the cost of having the goods repaired; or (D) the payment of the cost of replacing the goods or of acquiring equivalent goods; and (ii) in relation to services it has supplied to the Customer: (A) the supply of the services again; or (B) the payment of the cost of having the services supplied again.
12.7.5 Talend’s Details. Name: Talend Australia Pty Limited (ABN 64 608 467 652). Business address: Level 1, Unit 14, 151 Clarence Street, Sydney NSW 2000. Telephone number: (02) 8075 4740. Email address: firstname.lastname@example.org.
12.7.6 Export Controls. Without qualifying or limiting Section 11.3, the Customer acknowledges that the Talend Software is subject to Australian export control laws and regulations, including the Export Control Act 1982 (Cth); and the Customs Act 1901 (Cth). Customer is now and will remain in the future compliant with all such export control laws and regulations, and will not export, re-export, otherwise transfer any Talend goods, software or technology or disclose any Talend software or technology to any person contrary to such laws or regulations. Customer acknowledges that remote access to Talend Software may in certain circumstances be considered a re-export of Talend Software and/or Talend Cloud Services, and accordingly, may not be granted in contravention of Australian export control laws and regulations.
12.8.1 Personal Data Protection. Talend shall collect, use and disclose any data about individuals who can be identified from such data in accordance with the Singapore Personal Data Protection Act 2012.
12.8.2. Consumer Protection. If the transaction hereunder is an “applicable contract” for the purpose of Section 12 A of the Singapore Consumer Protection (Fair Trading) Act (Cap. 52A) and the Talend Software and/or Talend Cloud Services do not conform to the applicable contract at the time of delivery to you, then notwithstanding section 7.1, the Customer will be entitled to have, within 6 months from the date of delivery of the Talend Software and/or Talend Cloud Services, the same repaired or replaced, at Talend’s cost and without significant inconvenience to the Customer; or failing which, the Customer will further be entitled to require Talend to either reduce the amount paid for the Talend Software and/or Talend Cloud Services or provide a refund.
12.8.3 Export Controls. Without qualifying or limiting Section 11.3, the Customer acknowledges that the Talend Software and/or Talend Cloud Services is subject to the Singapore export control laws and regulations, including the Customs Act 1982 (Cap. 70), the Regulation of Imports and Exports Act (Cap. 272A) and the Strategic Goods (Control) Act (Cap. 300). The Customer is now and will in the future ensure compliance with all such applicable laws and regulations, and will not export, re-export, transmit or otherwise make available in Singapore on a computer such that the Talend Software and/or Talend Cloud Services becomes accessible to a person in a foreign country contrary to such laws and regulations.
12.8.4 Third Party Rights. Save for the Talend Group, no person who is not a Party has any rights under the Contracts (Rights of Third Parties) Act (Cap 53B) to enforce any provision of this Agreement.
12.9.1 Consumer Claims. If the Customer is a “consumer” for the purposes of the Consumer Rights Law (Legislative Decree no. 206/2005, Codice Del Consumo, hereinafter also “CRL”), the consumer will be entitled to contact Talend at the address and with the means of communications indicated in this Agreement, in relation to possible complaints. In light of the circumstance that the main subject of this Agreement is the supply of the Talend Software and/or Talend Cloud Services, according to article 59 of the CRL the right of withdrawal provided by the CRL is not be applicable.
12.9.2 Guarantee in favor of the Consumer. If the Customer is a consumer, our goods come with guarantees that cannot be excluded under the Italian Consumer Law. In particular, Talend guarantees that the goods delivered to the consumer are in conformity with the Agreement. Consumer goods are presumed to be in conformity with the contract if they: (a) comply with the description given by the seller and possess the qualities of the goods which the seller has held out to the consumer as a sample or model; (b) are fit for any particular purpose for which the consumer requires them and which he made known to the seller at the time of conclusion of the contract and which the seller has accepted; (c) are fit for the purposes for which goods of the same type are normally used; (d) show the quality and performance which are normal in goods of the same type and which the consumer can reasonably expect, given the nature of the goods and taking into account any public statements on the specific characteristics of the goods made about them by the seller, the producer or his representative, particularly in advertising or on labelling. There shall be deemed not to be a lack of conformity for the purposes of this paragraph if, at the time the Agreement was concluded, the consumer was aware, or could not reasonably be unaware of, the lack of conformity, or if the lack of conformity has its origin in materials supplied by the consumer.
12.9.3 Consumer’s Rights. Talend is liable to the consumer for any lack of conformity which exists at the time the goods are delivered. In the case of a lack of conformity, the consumer shall be entitled to have the goods brought into conformity free of charge by repair or replacement or to have an appropriate reduction made in the price or the contract rescinded with regard to those goods. The consumer may require Talend to repair the goods or he/she may require Talend to replace them, in either case free of charge, unless this is impossible or disproportionate. A remedy shall be deemed to be disproportionate if it imposes costs on Talend which, in comparison with the alternative remedy, are unreasonable, taking into account: (i) the value the goods would have if there were no lack of conformity, (ii) the significance of the lack of conformity, and (iii) whether the alternative remedy could be completed without significant inconvenience to the consumer. Any repair or replacement shall be completed within a reasonable time and without any significant inconvenience to the consumer, taking account of the nature of the goods and the purpose for which the consumer required the goods. The above mentioned terms “free of charge” refer to the necessary costs incurred to bring the goods into conformity, particularly the cost of postage, labor and materials. The consumer may require an appropriate reduction of the price or have the contract rescinded: (i) if the consumer is entitled to neither repair nor replacement, or (ii) if the seller has not completed the remedy within a reasonable time, or (iii) if the seller has not completed the remedy without significant inconvenience to the consumer. The consumer is not entitled to have the contract rescinded if the lack of conformity is minor.
12.9.4 Consumer’s Rights Time limits. Talend shall be held liable under 12.8.3 herein above where the lack of conformity becomes apparent within two years as from delivery of the goods. The consumer must inform Talend of the lack of conformity within a period of two months from the date on which he detected such lack of conformity.
12.9.5 According to Article 141-sexies, Paragraph 3 of CRL, Talend herewith informs the consumer that in the event that a consumer’s compliant to Talend has not been settled the dispute, Talend will provide the consumer with information relevant to the Alternative Dispute Resolution (“ADR”) body that will provide assistance in order to attempt to achieve an extrajudicial settlement of the dispute concerning the Agreement (according to articles 141-bis and following of the CRL).
In addition to the above Talend herewith informs the consumer that it is available the Online Dispute Resolution website, official website managed by the European Commission dedicated to helping consumers and traders resolve their disputes out- of-court available at the website: https://ec.europa.eu/consumers/odr/; where a list of ADR is available together with the relevant web link in order to start an online settlement procedure. The consumer will be entitled to file a claim before the Court in relation to this Agreement regardless of the outcome of the captioned extrajudicial settlement procedures.
The consumer resident in EU outside the Italian territory in relation to any dispute concerning this Agreement is also entitled to the procedure provided by the Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims if the value of the dispute is not greater than Euro 2.000, excluding interests, duties and expenses. The regulation is available on the website www.eur-lex.europa.eu.
12.10.1 Language. The Parties agree that this Agreement as well as any document or instrument relating to it shall be drawn up in English without prejudice of being drawn up and made available to customers in Spanish or any other regional language in Spain pursuant to Spanish laws.
12.10.2 Consumer Guarantees. If the Customer is a “consumer” for the purposes of the Spanish Consumers Act (Real Decreto Legislativo 1/2007, de 16 de noviembre, por el que se aprueba el texto refundido de la Ley General para la Defensa de los Consumidores y Usuarios y otras leyes complementarias) or any other applicable regional consumers laws, the Customer is entitled to a two-year statutory guarantee from the Effective Date for repair or replacement of the Talend Software and/or Talend Cloud Services, whenever it is defective or non-conforming with the description. Should the Customer notice a defective Talend Software and/or Talend Cloud Services, the Customer shall without delay make a complaint to Talend. Talend obliges itself to either substitute or repair the defective Talend Software and/or Talend Cloud Services.
12.10.3 Alternative Dispute Resolution (“ADR”). Customer can also submit any conflicts arising from or related to this Agreement to an ADR proceeding, if applicable. Customer can check the list of available ADR at the platform of the European Commission, available here: https://webgate.ec.europa.eu/odr/main/index.cfm?event=main.home.chooseLanguage.
12.11.1 Data Protection and Privacy. In the event, Talend has access to Customer Data, it shall comply with the data security practices specified for the applicable third party facility, which may be found at https://aws.amazon.com/compliance/ and https://azure.microsoft.com/en-us/overview/trusted-cloud/compliance/).
12.11.2 Warranty: To the extent permitted under Sale of Goods Act, 1930, we exclude any implied warranties, including for merchantability, satisfactory quality, fitness for a particular purpose, workmanlike effort and non-infringement.
12.11.3. Information Technology Act. The Customer shall not upload, host, display, publish, share or otherwise make available on the Talend Software and/or Talend Cloud Services any content or information that contains any content that is non- compliant with the Information Technology Act, 2000, Rules and regulations, guidelines made thereunder, including Rule 3 of The Information Technology (Intermediaries Guidelines) Rules, 2011.
12.11.4 Tax. Payments shall also be subject to the terms of the relevant double taxation avoidance treaty, if applicable.
12.11.5 Confidential Information. Confidential information as described in Section 6.1 of this Agreement shall include: client and customer data including all sensitive personal data information, as defined under Rule 3 of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, as may be provided by the Disclosing Party.