TABLE OF CONTENTS
- 1 GENERAL
- 2 SOFTWARE
- 3 LICENSE FEE AND PAYMENT
- 4 INTELLECTUAL PROPERTY RIGHTS
- 5 AUDIT
- 6 SOLUTION ASSURANCE
- 7 TERM AND TERMINATION
- 8 WARRANTIES
- 9 LIABILITY
- 10 FORCE MAJEURE
- 11 NOTICES
- 12 COMPLIANCE WITH LAWS
- 13 MISCELLANEOUS
- 14 DATA PROTECTION
- 15 CONFIDENTIALITY
- 16 DISPUTES
- 17 APPLICABLE LAW AND VENUE
1.1 This End User License Agreement (“EULA”) and these license terms ("License Terms") have been entered into between Conpds ApS (a Danish company registered with CVR no. 358 281 92 (the "Licensor") and the enduser ("the Licensee"). and each a "Part" or “Party”.
1.2 The License Terms apply to the Licensee's use of the software, services, and/or data that are marketed or otherwise distributed by the Licensor with reference to the License Terms (the "Software"). This applies regardless of whether the Licensee has acquired a license for the Software directly from the Licensor or through a third party.
1.3 Licensor reserves the right to modify this EULA for any new Product Release. By installing and continuing to use the new Product Release of the Software. Licensee accepts the new or revised version of this EULA.
1.4 The Licensee may, subject to Licensor’s prior written approval, permit its affiliates to use the Software, subject to the terms, conditions, and restrictions in these License Terms. Licensee shall be responsible and liable for the acts and omissions of its affiliates. Licensee ensures that none of its affiliates shall take any legal action against Licensor under these License Terms. In these License Terms, the term “affiliate” means any entity directly or indirectly controlling, controlled by or under common control with Licensee. “Control” means the ownership, direct or indirect, of a majority (fifty percent (50%) or more) of an entity’s stock entitled to vote for the election of directors.
1.5 The Software may only be used on the site and within the infrastructure environment in which it was first installed. Depending on the edition for which Licensee obtained a license, Licensee is allowed to use all or limited functionality of the Software. The number of licenses required by the Licensee depends on one of the following: the amount and type of devices to be used, as further specified on the Licensor’s website and price list, the purchase order, or an amendment to this EULA.
1.6 The use of the Software is limited to the number of licenses for which Licensee paid or otherwise rightfully acquired. If Licensee obtains subscription licenses, the term of use is not perpetual but limited to the specific subscription period agreed to. The use of applications available to access the Software is at Licensee’s sole risk. Licensee agrees that none of its employees or other persons under their control using the Software shall make any claim or take any legal action against Licensor in respect of the use of such applications. Licensor does not warrant any interoperability between the applications, the Software, and any third-party software.
1.7 These License Terms form an integral part of the agreement/order under which the Licensee obtains the right to use the Software (the "Agreement").
1.8 By using the Software, the Licensee agrees to be bound by these License Terms. If Licensee does not accept and/or comply with these License Terms, Licensee is not entitled to use the Software.
2.1 Provided that Licensee pays the license fee, Licensee is granted a non-exclusive, non-transferable, non-sublicensable right to install, use, perform and display the Software solely in object code format provided by The Licensor for the license period specified in the Agreement.
2.2 Only the Licensee is entitled to use the Software. The Licensee may only use the Software for its own internal business use. The Software may only be used for the purpose for which it is designed as described in the documentation.
2.3 Licensee may be granted download access to certain evaluation editions ("Evaluation Software") of the Software free of charge. Licensee has the right to use the Evaluation Software for evaluation purposes only. The Evaluation Software license is for evaluation and internal use only and not in a production environment or otherwise and expires 40 days after the issue of the Trial Licenses API key and license key. Licensor will have no liability for any harm or damage arising out of or in connection with Evaluation Software.
3 LICENSE FEE AND PAYMENT
3.1 Licensee's use of the Software is conditional upon Licensee's payment of the fee set forth in the Agreement ("License Fee").
3.2 Invoicing and payment of the License Fee shall be made as stipulated in the Agreement.
4 INTELLECTUAL PROPERTY RIGHTS
4.1 The Licensee acknowledges that the Licensor owns all copyright and intellectual property rights or exclusive industrial rights in and to the Software, including, but not limited to, the Software Code. This may also apply to changes, modifications, upgrades, etc., of the Software. This EULA and these License Terms do not grant to Licensee any ownership of the Software.
4.2 Licensee is not permitted to: (i) reverse engineer, disassemble or decompile the Software or any portion thereof or otherwise attempt to derive or determine the source code or the logic therein, except to the extent and for the express purposes authorized by applicable law, and only if Licensor is not willing or able to provide the required information or assistance (provided Solution Assurance is current) to Licensee; (ii) remove or evade any technical protection; (iii) use the Software for on behalf of third parties or sub-license, rent, sell, lease, distribute or otherwise transfer the Software or the Software license code provided by Licensor; and (iv) use the Software in a way prohibited by applicable law, regulation, governmental order or decree. Upon activation of the Software, the API key and license key provided by Licensor are linked to the customer to whom it is issued. Replacement of an API key and license key shall be subject to the prior written approval of the Licensor, which approval may be withheld.
5.1 On Licensor’s request, and at Licensor’s expense, Licensor may conduct an audit of Licensee’s use of the Software. Any such audit shall be conducted during regular business hours at Licensee’s facilities, by remote session or otherwise, and shall not unreasonably interfere with Licensee’s business activities. If an audit reveals that Licensee has underpaid in relation to its actual use of the Software, in addition to other remedies, the Licensee shall be invoiced for such underpaid fees. If the underpaid fees exceed five percent (5%) of the license fees paid, then Licensee shall also pay Licensor’s reasonable costs for conducting the audit.
6 SOLUTION ASSURANCE
6.1 With the exception of Evaluation Software, Licensee agrees to buy directly from Licensor or via a Licensor partner, a subscription to maintenance and support ("Solution Assurance") for a period of a minimum of one (1) year starting on the date Licensee receives the license key. Licensee’s subscription to Solution Assurance will automatically renew for an additional one (1) year period unless either Party gives the other party written notice of its intent not to renew at least thirty (30) days prior to the expiration of the then-current subscription term. Licensor's fees for Solution Assurance shall amount to 20% of the then-current list price of the Software, Licensor will not refund any payments made by Licensee. Licensor reserves the right to adjust its price for Solution Assurance. If Licensee does not accept an adjustment of the price, Licensee will be entitled to terminate its subscription to Solution Assurance services within thirty (30) days of receipt of the written notification of the price increase. Licensee shall pay invoices for Solution Assurance within the payment term stated on the invoice. If no payment term is specified, a payment term of thirty (30) days applies. In order to benefit from Solution Assurance, Licensee must have a valid license for the latest version of the Software. If Licensee has elected to terminate its subscription to Solution Assurance and, at a later date, wishes to reinstate Solution Assurance, Licensor may charge a reinstatement fee.
6.2 Solution Assurance consists of: (1) the right to download and use Product Releases to the Software. A Product Release can consist of a number of bundled fixes to defects and does not necessarily offer new functionality. For the purpose of this EULA, a “defect” means a reproducible instance of adverse and incorrect operation of the Software. Minor discrepancies that do not impair the normal use of the Software shall not constitute a defect under this EULA; and (2) access to Licensor’s Support by Internet, e-mail, and phone (during specified office hours). Licensor Support will assist in solving problems and defects in the Software.
6.3 Licensor provides Solution Assurance on a commercially reasonable efforts basis in the manner it considers appropriate. The licensor is not obliged to follow the directions of the Licensee. Licensee shall first analyze any problems with the Software internally before contacting Licensor Support. Licensee will provide all relevant information and materials to Licensor when contacting Licensor Support. Licensor may examine and test materials delivered by Licensee. The licensor is not obligated to use those materials. Licensee guarantees that Licensor is entitled to use the materials and, after approval by Licensee, is allowed access to its systems to provide Solution Assurance. Licensee agrees that any maintenance and support provided by third parties, including authorized partners of Licensor, is not part of Solution Assurance. Licensee is responsible for promptly and fully informing Licensor about any Software advice, support, and maintenance provided by third parties, which affect or could affect Licensor in providing Solution Assurance.
6.4 Licensor will provide Solution Assurance on the current Product until a new Product Release is made available. The licensor cannot provide optimal Solution Assurance to Licensee if Licensee does not use the latest Product Release.
6.5 Solution Assurance services do not include resolution of defects that result from (i) third-party software or hardware or (ii) any modifications to the Software by a party other than Licensor. Solution Assurance does not cover code supplied by the Licensor as part of either a consulting engagement or as a demo, sample, or contribution.
6.6 All materials, including but not limited to the Licensor website, demonstrations, samples, or contributions provided by Licensor (the "Materials"), are either owned by or licensed to Licensor. Licensee may only use those Materials as part of Solution Assurance and as long as it is entitled to Solution Assurance. In no event shall the Licensee publish, retransmit, redistribute or otherwise reproduce any Materials in any format to anyone or use any Materials in any connection with any business or commercial enterprise, without the express written consent of Licensor. Licensee will destroy all Materials not needed for the solution of a defect once the technical problem is solved.
7 TERM AND TERMINATION
7.1 This EULA takes effect when Licensee uses the Software, or at the date, Licensee receives the relevant API and license keys, whichever is earliest (the “Effective Date"). Licensor reserves the right to terminate this EULA upon 30 days’ notice in the event of: (1) a change of control of Licensee; (2) if Licensee breaches any provision of this EULA and, upon receiving written notice of such breach, fails to remedy such breach within thirty (30) days following receipt of the notice, or (3) if a petition for Licensee’s bankruptcy is filed or Licensee has been declared bankrupt.
7.2 Subscription to Solution Assurance shall automatically terminate on termination of the Licensee license.
7.3 Licensee is only entitled to terminate any rights in this EULA as specifically provided for herein or authorized under applicable law. Termination of Solution Assurance shall not affect the remainder of this EULA. Licensee’s usage restrictions on the Software as set forth above (License and Restrictions) shall survive any termination of this EULA. Upon termination of this EULA and insofar as allowed by applicable law, Licensee shall promptly cease to use the Software and return or destroy, at Licensee's expense and at Licensor’s option, all Software and any copies thereof and confirm this in writing to Licensor.
7.4 The provisions regarding Audit, Intellectual Property, Limitation of Liability, Confidentiality, Applicable Law, Miscellaneous, and Dispute shall survive the expiration or termination of this EULA.
7.5 Where Danish law is applicable and notwithstanding any other remedies available thereunder, Licensee shall not be authorized to rescind the EULA partly or entirely due to an attributable failure in the performance under this EULA.
8.1 The Software is provided "As Is" without warranty of any kind, whether express, implied, statutory, Or otherwise. To the maximum extent permissible by law. Licensor specifically disclaims with respect to the Software and supports any conditions of quality, availability, reliability, security, lack of viruses, bugs, or errors. Licensee assumes responsibility for the selection, installation, and use of the Software to achieve the Licensee’s intended results and shall have the sole responsibility for adequate protection of any data used in connection therewith.
8.2 Licensor warrants that the Software shall be free from material defects in materials and workmanship and shall conform in all material respects to the specifications as described in the documentation for a period of ninety (90) days from the effective date of the EULA provided the Software has been stored and used in accordance with ordinary industry practices and conditions. Licensor does not warrant that the functionality of the Software will meet Licensee’s requirements or is fit for any particular purpose, or that the operation of the Software will be uninterrupted, error-free, virus-free, or that defects in the Software will be corrected. It is the responsibility of the Licensee to isolate the Software, to use antivirus software, to make relevant backups, and to take other steps to ensure that the Software does not damage Licensee’s information or systems.
8.3 If the Software does not comply with the warranty set out in this section and if the Licensor is notified of such non-conformity within the warranty period, Licensor will, at its option, repair or replace such non-conforming Software at no additional charge or will refund the total amount paid for the non-conforming Software minus a reasonable usage fee. Licensor grants no other warranty, either express or implied, including without limitation, warranties of merchantability or fitness for a particular purpose.
9.1 Licensor shall in no event be liable to Licensee or any third party for any indirect, special, punitive, exemplary, incidental, or consequential damages (including damages, for loss of business, loss of use, loss of profits, business interruption, cost of cover, loss of or corruption to data, loss of production, loss of revenues, loss of contracts, loss of goodwill or loss of business information) arising out of this EULA or connected in any way with the use of or inability to use the Software, Services, Deliverables or the provision of Solution Assurance, or for any claim by any other party, even if Licensor has been advised of the possibility of such damages.
9.2 Licensor’s total liability to Licensee for all damages, losses, indemnification, and causes of action (whether in contract, tort (including negligence) or otherwise) shall not exceed € 10.000 (ten thousand euros). If Licensee is located in the United States of America or Canada, the maximum amount will be $ 10,000 (ten thousand US dollars). Licensor's liability will only arise if Licensee informs Licensor in writing of any defects or defaults and the damages resulting therefrom as soon as possible and gives Licensor a reasonable time to remedy a failure to perform. Any notice of defects or defaults must specify the failure in as much detail as possible so that Licensor will be able to act adequately.
10 FORCE MAJEURE
10.1 Licensor shall not be responsible for any failure of its obligations under this EULA to the extent that such failure is due to causes beyond Licensor’s control, including, without limitation, natural disaster, war, strikes, fire, floods, explosions, acts of any government or agency thereof, an act of terrorism, failures of suppliers, disruption in electricity supply or non-availability of telecommunication services. If Licensor is prevented by force majeure from fulfilling its obligations under this EULA for more than ninety (90) days, Licensor and Licensee are entitled to terminate this EULA.
11.1 Any notices permitted or required under this EULA shall be in writing and shall be deemed given when delivered (i) in person, (ii) by overnight courier, upon written confirmation of receipt, (iii) by certified or registered mail, with proof of delivery, (iv) by email, with confirmation of receipt (except for routine business communications issued by Licensor, which shall not require a confirmation from Licensee). Notices shall be sent to the Licensor’s business address or the email address set forth below, or at such other address, facsimile number, or email address as provided to the other party in writing. Notices for Licensor shall be sent to: email@example.com.
12 COMPLIANCE WITH LAWS
12.1 Licensee must comply with all domestic and international laws and regulations applicable to the Software and with any governmental end-user, end-use, and destination restrictions. Licensee must, at its own expense, obtain and arrange for the maintenance of any government approval and comply with all applicable laws and regulations necessary for Licensee's performance of the EULA. Licensee acknowledges that it is responsible for obtaining any licenses to export, re-export, or import the Software as may be required. Licensee will defend, indemnify, and hold harmless Licensor from and against all fines, penalties, liabilities, damages, costs, and expenses incurred by Licensor as a result of any violation of export control laws or regulations by Licensee or any of its agents or employees.
13.1 Licensee may not assign or transfer its rights or obligations arising under this EULA to any third party, including any group of companies, parent companies, subsidiaries, and affiliated companies of Licensee without the written consent by Licensor, and any such attempted assignment or transfer shall be void and without effect.
13.2 The failure of Licensor to enforce a provision of this EULA shall not constitute a waiver of such provision or any other provision or of the right of Licensor thereafter to enforce any provision of this EULA.
13.3 Licensor reserves the right to use Licensee name or trademark, trade name or logo in external communications, presentations and marketing materials, and on its website and to describe the solution provided to Licensee in these external communications.
14 DATA PROTECTION
14.1 Licensee represents and warrants that the content, use, and processing of personally identifiable information (“PII”) required to facilitate the subject matter of this EULA by Licensor on behalf of Licensee are not unlawful and do not infringe any right of a third party. Licensee shall notify Licensor in writing if it intends to provide any PII to Licensor.
14.2 Licensee shall have sole responsibility for the accuracy, quality, and legality of all data and PII provided to and processed by Licensor and the means by which Licensee acquired the PII.
14.3 As Licensor cannot be obligated to process any PII, Licensor is entitled to postpone its services if it considers the request of Licensee to process PII not in accordance with applicable laws and its own policies.
14.4 Licensor may, prior to any processing, require Licensee to accept additional terms if Licensor agrees to the processing of PII on behalf of Licensee, in particular, to ensure compliance with applicable laws.
15.1 During the term of this EULA, and at least for a period of three (3) years after the disclosure of confidential information, each Party shall protect and keep confidential all non-public information disclosed by the other Party (each, a “Discloser”) and identified as confidential by the Discloser, or which otherwise should reasonably be considered proprietary, confidential or commercially sensitive under the circumstances (“Confidential Information”), and shall not, except as may be authorized by Discloser in writing, use or disclose any such Confidential Information during and after the term of this EULA.
15.2 These obligations of confidentiality shall not apply to any information which: (i) was previously known to Recipient without restriction; (ii) is or becomes publicly available, through no fault of Recipient; (iii) is disclosed to Recipient by a third party having no obligation of confidentiality to Discloser; (iv) is independently developed by Recipient, or (v) is required to be disclosed as a matter of law.
15.3 The parties shall limit access to Confidential Information of the other party to those employees, and independent contractors who (i) need such information for the purposes of this EULA; and (ii) have entered into appropriate confidentiality agreements. Licensee shall ensure compliance with the terms of such agreements.
15.4 Confidential Information may be copied and disseminated within the Recipient's own organization only to the extent reasonably required for the purposes hereof.
15.5 Licensee understands and agrees that Licensor shall suffer irreparable harm in the event of a breach by Licensee of its obligations herein and that monetary damage shall be inadequate to compensate Licensor for such breach. Accordingly, Licensee agrees that, in the event of a breach or threatened breach of this EULA, in addition to and not in limitation of any other rights, remedies, or damages available at law or in equity, Licensor shall be entitled to a temporary restraining order, preliminary injunction, and permanent injunction in order to prevent or restrain any such breach without the posting of a bond or security.
15.6 If Licensee provides any suggestions, enhancement requests, or other feedback about the Software to Licensor, Licensor may use and modify it without any restriction or payment.
16.1 Promptly following written notice of dispute from one party to the other regarding a dispute that arises pursuant to the terms of this EULA, management of both parties will meet with each other and endeavor in good faith to resolve the dispute. If management cannot resolve the dispute, the dispute will be escalated to executive management for a further good-faith effort at resolving the dispute. If the parties fail to settle the dispute via the escalation procedure described above, the parties will investigate the possibilities of submitting the dispute to mediation or arbitration before starting litigation. Any mediation or arbitration requirements will not be applicable to a claim for injunctive or other equitable relief.
17 APPLICABLE LAW AND VENUE
17.1 This EULA is subject to and shall be construed in accordance with Danish law, with the exception of (a) rules leading to the application of legislation other than Danish and (b) the United Nations Convention on Contracts for the International Sale of Goods (CISG).
17.2 Any dispute or claim arising out of or in connection with this EULA not settled by mediation or arbitration shall be settled by a competent court at the Licensor's jurisdiction.