GENERAL TERMS AND CONDITIONS FOR SOFTWARE USE
Jabatix S.A.
Definitions
In these Terms, unless the context otherwise requires, the following expressions shall have the following meanings:
"Agreement" | The agreement for the provision of the software, including all attached appendices and subject to these terms and conditions; |
"Computer system" | Refers to the hardware, the software including the operating system and the network; |
"Customer" | Any person, firm or company that acquires the JABATIX software in accordance with these terms and conditions; |
"Equipment" | The customer's hardware on which the software runs; |
"Intellectual property rights" | All existing and future intellectual property rights, including but not limited to copyrights, rights in software, trademarks, service marks, design rights (registered or unregistered), patents, know-how, trade secrets, inventions, invention disclosures, database rights and all applications for protection or registration of such rights and all renewals and extensions of such rights existing in any part of the world, whether now known or created in the future, to which the party concerned is entitled; |
"Rights of use" | The rights of use of the Software granted by JABATIX pursuant to Article 3 of the contract; |
"Rights of use fee" | The fee for the rights of use granted under the Agreement, as specified on the Agreement; |
"Software" | JABATIX software programmes incl. documentation |
"Customer" | Any natural or legal person who is a customer of JABATIX and concludes this contract for the use of the Software; |
"Operating system" | The software used to operate the computer and the computer's peripheral devices; |
"Software maintenance" | Maintenance of the software provided by JABATIX; |
"Specification" | The document describing the specification of the Licensed Software as it may be amended from time to time in accordance with the Agreement or as a result of upgrades to the Software; |
"Software from third-party providers" | The third party software that the customer wishes to connect to or use with the software; |
"User" | An employee or authorised representative of the Customer who uses the Licensed Software solely for the purpose of properly performing his or her duties under this employment relationship or representation; |
Application of the conditions
These conditions must be met:
apply to and be incorporated into the Agreement; and
Override any conflicting terms contained or referred to in the Customer's order, order confirmation or specification or implied by law, custom, practice or course of dealing.
The customer's general terms and conditions (if any), which are attached to an order or referred to elsewhere in an order, shall not apply to the contract.
Any amendment to the agreement must be made in writing and must be signed by or on behalf of the parties.
Granting of the right of use
JABATIX grants the customer a non-exclusive and non-transferable right to use the software for the usage fee, for the period of time communicated by Jabatix, in accordance with the conditions contained in this contract.
The installation and use of the Software is limited to the customer's computer system. The installation and use of the software on systems other than those of the customer (including use by affiliated companies of the customer) is prohibited without the prior written consent of JABATIX.
Obligations of the customer
Unless otherwise agreed, the customer may only use the software on one computer system.
In the event that the Customer upgrades or modifies its Equipment or Software without notifying JABATIX or following JABATIX's recommendations, JABATIX shall not be liable to Users for any loss, damage, cost, expense or other liability incurred by Customer or Users as a result thereof, including that resulting from loss of functionality or use of the Software, and JABATIX shall not be obligated to provide Software Maintenance with respect to the modified or upgraded Equipment or Software or Hardware until such modifications have been approved by JABATIX.
If the Software is to be used with third party software, including operating systems, the Customer shall ensure that it installs, maintains, repairs and updates such third- party software in strict accordance with any instructions, requirements, advice or guidance issued from time to time by the owners or licensors of the said third party software.
The rights of use are personal to the customer, who may not perform any of the following actions under the contract:
Modify the software or create derivative works such as translations or localised versions;
modify, translate, reverse engineer, decompile, disassemble or otherwise alter or interfere with the Software or develop customisations or create derivative works based on the Software;
except with the permission of sections 50A to 50C of the Copyright Designs and Patents Act, make back-up copies of the Software provided that the Customer has the right to reproduce and make available copies of the Software for internal use only and to retain an archival copy of the Software (which must be stored on a medium other than a computer hard disk);
to pass on, assign, transfer, sell, lease, rent, licence, encumber or otherwise deal with the software or to use it on behalf of a third party or to make it available to third parties.
remove or alter any trade marks, logos, copyright notices or other proprietary notices, legends, symbols or labels on any part of the software or on copies;
modify any header files or class libraries in any part of the software;
All data generated by the User within the Customer's system running the Software belongs to the Customer and the Customer is responsible for complying with the provisions of all applicable data protection and other legislation relating to such data and systems.
Software maintenance
During the term of these usage rights and subject to the proper payment of the usage fee, JABATIX:
to provide the Software Maintenance as described in clause 6; and
to provide other services as described and on the terms contained in the agreement.
JABATIX shall make new software releases available to the customer as soon as they are generally available to JABATIX customers. Upon delivery to the customer, the software releases become part of the software and are subject to these terms and conditions
If JABATIX's review of a nonconformance determines that the reported problem is not a nonconformance, but is due to other causes, including, but not limited to, input not in accordance with the specification, misuse or abuse of the Software System by Customer, a modification or addition to the Software System not performed by JABATIX, the Customer's failure to properly maintain the computer system or install the required system software version in accordance with JABATIX's instructions, or network problems, JABATIX may insist that the nonconformity be corrected.
JABATIX may utilise remote diagnostic software and remote communication services in the provision of the Maintenance Services. Each party shall bear its own costs and other costs and expenses, if any, incurred in connection with such software and communication services. Notwithstanding the foregoing, Customer shall co-operate with and assist JABATIX to expedite resolution.
Term
Full usability of the software begins on day+1 of payment of the fee and is valid for the initial term. After expiry of the initial term and payment of the additional usage fee, it enters the renewal term, whereby either party may terminate the rights of use at any time without notice. Usage fees already paid will not be refunded. If no cancellation is made, the rights of use are automatically extended for a further 12 months.
Software maintenance starts and runs for the same length of time as the right of use.
Payment
The Usage Rights Fee(s) specified in the Data shall be payable by the Customer on the Effective Date and, in the case of renewal, shall be due and payable for the Renewal Term on the first day of each Renewal Term. Payment of the fee(s) is essential.
Ownership and rights of use
All intellectual property rights of any kind (including, but not limited to, all copyright and trade mark rights) in the Licensed Software and all documentation and other related works shall remain the property of JABATIX. Nothing in the Agreement shall constitute or be deemed to constitute an assignment of such intellectual property rights.
The customer undertakes not to take or permit any action that in any way infringes, restricts or impairs the ownership or rights of JABATIX to the Licensed Software and the associated documentation. The customer shall notify JABATIX within five (5) business days if it becomes aware of any unauthorised use of all or any part of the Licensed Software by any person and shall cooperate fully with JABATIX in any action necessary to prevent such unauthorised use.
The ownership and rights to all content that can be accessed with the Licensed Software are held by the respective owner. The rights of use granted by the contract do not include any rights in relation to such content.
Each copy of the Software must show the ownership rights of JABATIX.
Guarantees
JABATIX guarantees
the media on which the Software is supplied (if any) are free from defects in materials and workmanship under normal use; and
free and unencumbered title to the Software and the right, power and authority to authorise its use under the terms of the Agreement; and
the software complies with the specification in all essential aspects in unchanged form and with proper installation and operation.
This limited warranty limits JABATIX's obligation to the correction or replacement of the software or the refund of the fees, as the case may be. This is the customer's sole and exclusive remedy for breach of any express or implied warranty.
JABATIX and its suppliers do not warrant that the use of the Software will be uninterrupted or error-free.
JABATIX and its suppliers do not warrant that the Software will meet the customer's requirements or function in the customer's chosen application environment. The security mechanisms implemented in the Software are subject to inherent limitations and it is the Customer's responsibility to verify that the Software meets its requirements. The Customer assumes full responsibility for the selection of the Software and its suitability to achieve the intended results. The Customer agrees that the use of the Software is not a substitute for the exercise of commercial or professional judgement.
JABATIX and its suppliers shall not be liable under any express or implied warranty if and to the extent that:
the customer damages the data carrier by accident, error or improper use;
the customer modifies or misapplies the software subject to usage rights;
the customer uses the software as part of, an extension to or in connection with software not supplied by JABATIX;
the customer uses the software on a computer system other than the specified equipment; or
the customer does not comply with the provisions of the contract.
All other conditions, warranties or other terms which are effective between the parties or implied into the Software, any collateral contract, whether by statute, common law or otherwise, are hereby excluded to the fullest extent permitted by law, including but not limited to the implied conditions, warranties or other terms as to satisfactory quality, fitness for a particular purpose or the use of reasonable skill and care.
When reporting a defect or fault, the customer shall provide JABATIX with an example of such defect or fault and the steps required to rectify the problem and shall provide JABATIX with all reasonable access (including remote access where appropriate) to the premises and facilities of the customer or the relevant site in order to assess and (where appropriate) rectify the defect or fault.
Limitation of liability
The following provisions shall govern JABATIX's entire liability (including liability for the acts and omissions of its employees, agents and subcontractors) to the Customer in respect of:
any breach of its contractual obligations arising from the Agreement;
any use by the Customer of the use of the Software, the Maintenance Services, the Specification and the Software Version or any part thereof; and
any representations, statements or unauthorised acts or omissions, including negligence (other than those made fraudulently), arising out of or in connection with the Contract.
All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement.
In the event of any act or omission of JABATIX or its employees, agents or subcontractors which JABATIX is unable to remedy as provided in the Agreement, or in the event of any other liability of JABATIX to the Customer or any User arising out of or in connection with the Agreement or the Software, the total aggregate liability of JABATIX to the Customer shall not exceed the fees charged (and paid by the Customer) for the period of non-compliance or the year in which the cause of liability arose.
If several events of default essentially lead to the same damage, it is assumed that they only give rise to one claim under the contract.
JABATIX shall only be liable to the customer if the customer has notified JABATIX within 30 days of the date on which it became aware, or should reasonably have become aware, of the circumstances giving rise to the case.
Nothing in the Contract shall limit liability for death or personal injury caused by the negligence of JABATIX, its officers, employees, contractors or agents, for fraud or fraudulent misrepresentation, for breach of obligations arising under section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 or for any other liability which cannot be excluded by law. Notwithstanding the foregoing, section 26 of the Unfair Contract Terms Act 1977 applies to international supply contracts.
Nothing in this clause shall confer on the customer any right or remedy to which the customer would not otherwise be entitled.
The customer shall be solely responsible for any liability arising from the content provided by the customer and/or for any material provided by the customer to users through which users can connect to the content. Any data that JABATIX inserts or includes in the Software upon delivery is for testing purposes only and JABATIX disclaims any liability for it.
Excluded services
JABATIX is not obliged to provide software maintenance with regard to the following points:
Problems arising from changes to the Software that have not been authorised in writing by JABATIX in accordance with the terms of the Rights of Use Agreement;
Hardware equipment;
the installation and configuration of the usage rights software and the associated hardware on new or additional hardware;
all users who are not currently authorised to use the software;
the diagnosis and removal of spyware and/or viruses on a PC (except as a result of a breach by JABATIX);
Diagnosis and rectification of faulty operating systems on a PC;
the training of current or future employees of the customer and users in the use of the software.
Confidential information
JABATIX and the Customer agree, except as provided below, to treat as confidential and keep secret all information labelled "confidential" or reasonably believed to be confidential (such as business, technical, financial or other information) created or modified by the Customer or by JABATIX with the same care that JABATIX exercises in respect of its own confidential information of a similar nature and in any event in accordance with best current commercial security practice, provided that this clause shall not extend to information which was lawfully in the possession of either party prior to the commencement of the negotiations leading to the Agreement or which is already in the public domain or becomes so at a later date (unless as a result of a breach of this clause).
The parties may not disclose any part of the information to any other person without the prior written consent of the other party, unless required by law or court order:
to their own employees and then only to those employees who need to know; or
to a party's auditors, an officer of the taxing authority, a court of competent jurisdiction, a governmental or regulatory authority, and any other person or body having a right or duty to know the affairs of the other party and then only in the exercise of that right or duty .
Both parties undertake to ensure that the provisions are made aware prior to the disclosure of any part of the information that it is confidential and that they have a duty of confidentiality to the other party.
Each Party shall promptly notify the other Party if it becomes aware of any breach of confidence by any person to whom it discloses all or part of the information and shall provide the other Party with all reasonable assistance in connection with any proceedings that the other Party may bring against such person for breach of confidence.
JABATIX accepts no liability for security breaches resulting from unauthorised access to the software or for other security losses resulting from acts or omissions (including the unauthorised disclosure of access codes, software/licence keys, etc.) by the customer or its employees, agents or other collaborators.
The above confidentiality obligations shall remain in full force and effect for a further three (3) years, notwithstanding any termination of the rights of use or the agreement.
Scheduling
Either party may terminate the contract with immediate effect to the other party .
After termination of the contract, for whatever reason, the customer must immediately cease all use of the software and destroy all copies of the software,
Termination of the Agreement shall not affect the rights and remedies of the Parties that have accrued up to the date of termination.
Termination of the agreement does not entitle the customer to a refund of the usage fees already paid; refunds will not be made under any circumstances.
Termination of the Agreement shall not affect the entry into force or continuation in force of any provision of the Agreement which is expressly or impliedly intended to enter into or remain in force on or after such termination.
Data protection
The parties undertake to comply with the provisions of the Data Protection Act 1998 and all related legislation insofar as it relates to the terms and obligations of the Contract. All data stored on the Customer's system shall at all times be the responsibility of the Customer.
Agency, Partnership
The Agreement does not create or imply a partnership, joint venture, agency, fiduciary relationship or any other relationship between the parties other than the contractual relationship expressly provided for in the Agreement.
Assignment and third-party rights
The Agreement is made for the benefit of and shall be binding upon the parties and their successors and permitted assigns. Except as expressly provided elsewhere in the Agreement, a person who is not a party to the Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any provision of the Agreement. Subsidiaries or affiliates of JABATIX shall not be deemed to be third parties in relation to the foregoing.
The Customer shall not be entitled to assign, transfer, charge, sub-contract or deal in any other manner with any of its rights or obligations under the Agreement without the prior written consent of JABATIX.
JABATIX may at any time assign, transfer, charge, subcontract or otherwise deal with any or all of its rights or obligations under the Agreement.
References and announcements
Without limiting the confidentiality provisions of this Agreement, the parties agree that each party may reasonably publicise the fact of the non-confidential subject matter of this Agreement for ordinary marketing purposes and that each party may use the other party's trademarks, service marks, logo and trade names for this purpose in accordance with the other party's standard trademark policy and guidelines (if any).
Except as provided in this clause, the parties acknowledge and agree that nothing contained herein shall confer upon either party any right, title or interest in or to any of the other party's trademarks.
Force majeure
Neither party shall be deemed to be in breach of the Contract or liable to the other party for any delay or failure in the performance of its obligations under the Contract if such delay or failure is caused without the fault or negligence of that party wholly or partly by any act, omission or circumstance beyond the reasonable control of that party, including, without limitation, acts of God, flood, storm, fire, war, acts of terrorism, riot, strikes or other industrial action, governmental action, breakdown of machinery or any delay or failure on the part of any subcontractor, user rights provider or carrier of goods or materials in connection with the Contract ("Force Majeure Event").
If one of the parties is prevented from fulfilling its obligations under the contract by an event of force majeure:
it shall immediately notify the other party in writing, stating the nature, circumstances and commencement of the force majeure event;
it shall use all reasonable endeavours to terminate or remedy the Force Majeure Event and resume performance of its obligations as soon as it has ended, but no later than three (3) Business Days after it has ended; and
subject to the clause 21.3 the time limit for the fulfilment of the obligation which is the subject of the notice shall be extended by a period corresponding to the delay caused by the Force Majeure Event.
Notes
All notifications under the Agreement must be made in writing.
The notifications are deemed to have been duly delivered:
upon delivery, if it is delivered by a courier or other messenger (including registered mail) during the recipient's normal business hours; or
in the case of transmission by fax or e-mail, if a report of successful transmission or an acknowledgement of receipt has been issued; or
on the fifth business day after dispatch, if sent by normal national post, postage prepaid, or
on the tenth working day after dispatch, if sent by airmail, with postage prepaid
in each case to the address, e-mail address or fax number last notified to the other party.
Entire agreement
The Agreement contains all terms and conditions applicable to the Usage Rights and related services and supersedes all prior and current written or unwritten proposals, agreements, understandings or industry practices relating thereto and any conflicting documents (including, but not limited to, quotations or purchase orders) submitted by the Customer.
The provisions of any annexes to the contract shall form part of the contract as if they were contained herein.
Separability
If any provision of the Agreement is prohibited by law or held by a court to be illegal, void or unenforceable, such provision shall, to the extent necessary, either (a) be severed from the Agreement and rendered ineffective to the maximum extent possible without modifying the remaining provisions of the Agreement, or (b) be modified to the extent necessary to make the provision enforceable and effective without invalidating the underlying intent. Such severance or modification shall in no way affect other circumstances or the validity or enforcement of the Agreement.
Waiver
No delay, neglect or omission by either party in enforcing any term or condition of the Agreement against the other party shall constitute or be deemed a waiver or in any way affect such party's rights under the Agreement. No right, power or remedy conferred upon or reserved to either party by the Agreement shall be exclusive of any other right, power or remedy available to such party.
A waiver of a right under the contract is only effective if it is made in writing and applies only to the party to whom the waiver is addressed and to the circumstances in which it is made.
Language
The Agreement is drafted in English only. In the event of a conflict of meaning between the English language version of the Agreement and a version or translation in another language, the English language version shall prevail.
Costs and expenses
Each party shall bear its own attorneys' fees and other costs and expenses incurred in connection with the drafting, negotiation, execution and registration (if any) of the Agreement.
Applicable law and jurisdiction
The Contract and any dispute or claim arising out of or in connection with its subject matter shall be governed by and construed in accordance with the laws of Luxembourg, without regard to its choice of law provisions, including the UN Convention on Contracts for the International Sale of Goods.
The Parties shall use their best endeavours to negotiate in good faith and to settle amicably all disputes arising out of or in connection with the Agreement.
In the event that a dispute cannot be resolved in accordance with the above procedure, the parties agree that they will attempt to resolve any dispute arising out of or in connection with the Agreement through mediation in accordance with the Centre for Effective Dispute Resolution ("CEDR") Model Mediation Procedure, as amended from time to time.
Unless the parties agree otherwise, the mediator shall be appointed by CEDR. The mediation procedure shall be initiated by one of the parties sending a written mediation notice to CEDR, 70 Fleet Street, London, EC4Y 1EU, United Kingdom, or to the other party. The mediation shall commence no later than fourteen (14) days after the date of the mediation notice.
No Party shall commence legal proceedings in respect of any dispute arising out of or in connection with the Agreement until it has attempted to resolve the dispute through mediation, provided that the right to commence proceedings is not prejudiced by any delay.
In the event that a dispute cannot be resolved in accordance with the above CEDR Model Dispute Resolution Procedure, the parties agree that the dispute may be referred by either party to the courts of Luxembourg, which shall have final, exclusive and irrevocable jurisdiction to hear and determine all actions, proceedings and/or disputes arising out of or in connection with the Contract or its formation or validity (including non-contractual disputes or claims) and shall submit to the exclusive and irrevocable jurisdiction of the courts of Luxembourg for the purpose of settling any such dispute, actions or proceedings and/or the settlement of all disputes arising out of or in connection with the contract or its formation or validity (including non-contractual disputes or claims), and for these purposes each party irrevocably submits to the jurisdiction of the courts of Luxembourg.