1.1 The following words and phrases shall have the meanings and definitions set forth below:
(b) Dynamic Quality Framework ("DQF") means a platform that consists of resources, a knowledge base, Reports and tools, maintained and updated by TAUS;
(d) "Reports" means graphical reports, key performance indicators and downloadable reports as well as the underlying data of the USER on which the Reports are built, as generated by DQF based on the quality evaluations performed by users of DQF;
(e) "User" is a party or individual that has paid an admission fee and is officially registered as a user or a member of TAUS;
(f) "Database" means a collection of Data, systematically selected, processed, maintained and updated by TAUS with its taxonomy of domain and private index categories;
(g) "Data" means the Language Data as developed by User or licensed to User by a third party under terms that allows User to provide the Data in the context of this Agreement and supplied by User to TAUS for further use by itself, its members and non-members;
(h) "Derivative Work" means a work based upon one or more preexisting works, such as Data, in which a work may be recast, transformed or adapted. A work consisting of editorial revisions, annotations, elaborations or other modifications, which as a whole represent an original work of authorship, is a derivative work. Non-material modifications to a preexisting work do not constitute a derivative work;
(i) “IP-Free” means Data that are free of Intellectual Property Rights;
(j) “Intellectual Property Rights” means the copyrights and the sui generis database rights of the User with respect to the Data, including any licensed copyrights and sui generis database rights, but excluding any copyrights, sui generis database and patent rights to the Database;
(k) "Language Data" means all data consisting of a source side of the translation, and the matching target side, which has the same meaning as the source side in a different language and associated metadata, indicating the language pair and other pertinent information about this source/target pairs;
(l) “Language Data Platform” means the repository and the applications that together comprise the platform to be used by members and users;
(m) "TAUS" means TAUS B.V., a Netherlands company, currently residing at Oosteinde 9, 1483 AB De Rijp, The Netherlands;
(o) “Terms of Membership” means the document that describes procedures, obligations and rights of the members;
(p) “Parties” means TAUS and User;
(q) “Proprietary Information” means all information, which is not known to the public concerning the business of the User and including, but not limited in form to, samples, recipes, prototypes, technical reports, manufacturing instructions, drawings and formulae.
2. Grant of License and user rights to the Data and the Database
2.2 The Parties recognize the importance of quality of the Database. User has familiarized itself with the Data and makes sure that the Data is of high quality. It is the responsibility of the User to undo its Data from Proprietary Information. TAUS must not knowingly use Data that contains Proprietary Information and TAUS must use reasonable efforts to refer such Data to User.
2.3 Upon discovery, by either party, that the Data contains Proprietary Information or other information which User is obligated to keep confidential, the discovering party shall immediately inform the other party of such discovery. TAUS shall cooperate fully with User in retrieving and removing such information from the Data, and shall use best efforts to maintain the confidentiality of such information.
2.4 In consideration of the license grant pursuant to Article 2.1, and subject to Articles 2.5 and 2.6, the User obtains access to the Language Data and the Database provided that the User is a member of TAUS.
2.5 Access to the Database and the Language Data includes the following limitative rights:i) the right to use the target side of the translation units into a commercial product, provided that User may not resell the Data as if it is its own new translation;ii) the right to make Derivative Works; andiii) the right to use or resell such Derivative Works commercially.
2.7 Any other use or more extensive use of the Data beyond the limited scope of Articles 2.5 and 2.6, including but not limited to the redistribution, repackaging or relicensing of the translation units (the original language data and the translation of the original) in any form or subset, is not allowed.
2.8 Charges for access to the Database and the Language Data will be set out in the Terms of Membership.
3. Right to use DQF
3.2 The right to access and use DQF is limited to the remote access and/or use of DQF by means of electronic access via the Internet for purposes of processing, retrieving and leveraging the Data and the Reports.
3.4 TAUS may take technical measures to protect DQF. The User may not remove or circumvent such technical measures.
3.5 TAUS reserves the right to audit - or to have a third party audit - whether User complies with the granted rights regarding the use of DQF and the Reports.
3.6 The User is responsible for meeting the technical and functional requirements (provided by TAUS to the User) in order to be able to access and use DQF. The use of DQF and/or the Reports is for the USER's own account and risk. The use of electronic communication facilities in order to gain access to DQF is also for the User's own account and risk. Unless in case of intent or gross negligence, TAUS will in no event be liable for any damage, loss or costs, including loss of Reports, or any inability of the User to use DQF as a result of a shortcoming, defect or other malfunction of the aforesaid electronic communication facilities. Furthermore, the risk of loss or theft of or damage to the Reports will at all times be borne by the User.
3.7 The User has access to DQF and the Reports for as long as the User has paid an admission fee. After a User stops paying admission fees TAUS keeps copies of the User’s Reports for a period of 12 (twelve) months. If the User restarts using DQF within 12 months after having interrupted the usage, all Reports will still be available. If the User restarts using DQF more than 12 months after having interrupted the usage, the Reports will no longer be available.
3.8 Usage of the Reports is personal. TAUS ensures that data used to generate Reports are anonymous.
3.9 TAUS will not automatically renew the User’s subscription. TAUS will notify the User before the subscription expires. The User will then have to renew the subscription.
4. User's obligations / Academic Members
4.2 Academic Members (as defined in the TAUS Academic Rider Agreement) are also bound by the terms and conditions as set forth in the TAUS Academic Rider Agreement. To this end, Academic Members shall execute the TAUS Academic Rider Agreement and return a signed copy to TAUS.
5. Intellectual property rights
5.1 All intellectual and ownership rights, including but not limited to any and all copyrights, sui generis database rights and patent rights in respect of DQF and the Database exclusively vest in TAUS and its licensors. Furthermore, TAUS exclusively owns all rights in any ideas, concepts, know-how, documentation, techniques with respect to DQF, the Database as well as the technology available on the servers of TAUS, unless the technology is licensed to TAUS. The User indicates upon submitting the Data whether the User owns the Intellectual Property Rights to the Data, acts on behalf of the owner of the Intellectual Property Rights (article 8.1) or submits Data that are free of Intellectual Property Rights and are as such Fair-to-Share. The User does not grant TAUS, without the prior written consent from the trademark owner, the right to use any such trademarks.
6. Functioning of Database and DQF / Liability
6.1 The Database and DQF are provided "as is" without warranty of any kind, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose and non-infringement. In no event shall TAUS vis-à-vis the User be liable for any claim, damages or other liability, whether in an action of contract, tort or otherwise, arising from, out, or in connection with the use of DQF, the Reports, the Database and the Data.
6.2 TAUS shall not be liable for any damage, loss, demand, liability, claim, cost or expense (including litigation costs and attorney's fees) of whatever kind, caused by or resulting from the use of the DQF, the Reports, the Database and the Data.
6.3 This Article does not limit TAUS' liability for direct damages caused by gross negligence or willful intent by TAUS or the board of directors or the executive management of TAUS provided that User
7.2 If User in its discretion elects not to pursue any action against a Suspected Infringer, User will notify TAUS whereupon TAUS may notify User of its desire to pursue such action in its own name. If the possible infringement can reasonably be expected to have material adverse effect on TAUS if no action is taken with respect to the possible infringement, User shall permit TAUS, at its sole expense, to proceed in its own name with the prosecution of any action with respect to stopping the possible infringement, provided that User shall have the right to participate in such action, at its own expense, shall have the opportunity to review and comment in advance on any material substantive filings or proceedings in such action, and shall approve of any settlement of any such action, which approval will not be unreasonably withheld or delayed.
7.3 Notwithstanding the above, User shall have the final decision with regard to bringing or proceeding with such action. If User, in its sole discretion, determines that such action would not be in the best interest of User, User shall notify TAUS of such determination, whereupon TAUS shall not bring such action against Suspected Infringer, or if such action has commenced, to terminate such action.
8. Representations and Warranties of User
8.2 User hereby further warrants that to the best of its knowledge Data submissions do not contain any viruses, worms, spyware, or other components or instructions that are malicious, deceptive or designed to harm or limit the functionality of a computer. User warrants that procedures have been put in place that reduce the risk of contamination of the Data with aforesaid shortcoming.
8.3 User makes no representation or warranty of any nature as to the correctness of the Data.
8.4 User hereby agrees to indemnify TAUS for, to hold TAUS harmless against and to reimburse TAUS for, any and all damages and/or expenses (including attorney’s fees) resulting from any breach of one or more of the representations and warranties set forth in Article 8.1 hereof, provided that TAUS: (a) provides written notice of the claim and any such threatened claim promptly to User; (b) gives User sole control of the defense and settlement of the claim; (c) provides to User, at User's expense, all available information, assistance and authority to defend; and (d) has not compromised or settled such proceeding without User's prior written consent.
9.7 Insofar as legally possible, Parties agree to exclude the applicability of articles 6: 227b and 6:227c of the Dutch Civil Code, inter alia, the duty to provide specific information on e-contracting.