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Article 1. Definitions
The
General License Terms of Netpresenter use the following definitions:
Documentation: any user documentation necessary, both on paper and
in electronic format, pertaining to Netpresenter Software.
License: the right granted to Licensee to operate Netpresenter
Software in accordance with this agreement.
Insufficiency: a defect that does not negatively influence the
operational performance of the Netpresenter Software.
Licensor Staff: any staff members that Licensor employs for the
execution of this Agreement who will work under his responsibility.
Malfunction: a defect because of which Licensee is unable to use
one or more functions of the Netpresenter Software due to its dysfunction on
the device.
Netpresenter Software: the software to be delivered by
Licensor including the corresponding Documentation for the use of which
Licensee has been licensed by Licensor.
Operational Malfunction: a defect that seriously disrupts
operation of the Netpresenter Software. Licensee determines when such
Operational Malfunction occurs. An Operational Malfunction occurs in any case
in which normal operation of one or more Netpresenter Software functions is
disabled for a period longer than 24 hours after notification of the defect to
Licensor.
Professional Deficiency:
shortcomings, such as errors, carelessness, negligence, defaults, incorrect
advice, that a professional Licensor under the given circumstances, observing a
normal level of concentration, and standard professional knowledge and
performance should be able to avoid.
Shortcoming: a defect that hampers Netpresenter Software
operations and/or affects or reduces the trustworthiness, the integrity, and/or
availability of the databases running under Netpresenter Software.
Upgrade: an updated version of the Netpresenter Software,
which includes repairs of detected/hidden faults, logical relational
improvement of the Netpresenter Software and/or enhancement of its
functionality.
Workdays: calendar
days, except in weekends and on national holidays, when the activities agreed
on will be performed.
Article 2. Support
2.1
Licensor
shall provide support to Licensee's staff, but not to end users, in
troubleshooting Netpresenter Software operations.
2.2
Licensee
may consult any related problems with Licensor either by telephone or in
writing, but preferably by email.
2.3
In
case of any urgent questions by telephone or email, Licensor shall as soon as
possible, but not later than 48 hours, respond either by telephone or in
writing. In any other cases, Licensor shall respond in writing within 1 week
upon receipt of the question(s).
2.4 Licensor
shall provide support on Workdays from 9:00 am to 5:00 pm (CET) and Licensee
shall submit any requests hereto by telephone or email. Licensee shall confirm
a defect incidence in writing, if requested by Licensor.
Article 3. Defect
solving
3.1
Licensor
shall take concrete action to solve any reported defect as soon as possible,
but not later than eight hours after reporting.
3.2
Licensor
shall solve the reported defect within 10 days upon reporting.
3.3
Licensor
shall assist Licensee in solving the reported defect without any reservation.
3.4
If
a reported incidence is later found not to be attributable to the supplier,
Licensor is entitled to present Licensee with an invoice for the corresponding
activities performed.
3.5 If a defect can only be remedied through
the installation of an upgraded version of Netpresenter Software, Licensee is
held to install this Upgrade.
3.6 Defect solving shall only be performed
until the warranty period mentioned in Article 6 has expired. If, after
expiration of the warranty period, Licensee wishes to continue Licensor's
maintenance services, the corresponding standard maintenance provisions shall
apply. If the License regards a purchase agreement and no maintenance is
agreed, no appeal can be made to the provisions in this article.
3.7 If Licensor
considers it necessary to gain access to Licensee's systems, this access shall
unconditionally be provided by Licensee to any system on which Netpresenter Software has been installed.
Article
4. Costs
Troubleshooting and Maintenance
4.1 Licensor shall solve any defects reported
after expiration of the warranty period free of charge. In the event that no
maintenance has been agreed with Licensee, the corresponding maintenance
charges shall be charged retroactively.
Article 5. Upgrade Deliveries
5.1
In
the case of a lease agreement or purchase agreement, both with a validity
period of three years or more, Licensor shall deliver new Upgrades that are
released during the warranty period and the validity period of the License
agreement. The Upgrade shall include all updated Documentation as well.
5.2
Licensor
shall deliver Upgrades free of charge if Upgrade deliveries are provided for in
the agreement.
Article 6. Warranty
6.1 Parties guarantee that all obligations
under this Agreement shall be met.
6.2 Licensor guarantees the accurate and
professional performance of the activities to be performed by him.
6.3
The
warranty period is determined at three months or 90 days upon signature of the
agreement.
6.4
Licensor
guarantees that the Netpresenter Software to be delivered shall not contain any
security measures and/or functions and/or elements alien to the software (such
as logic bombs, viruses, worms, etc.) other than those mentioned in the
Documentation.
Article 7. Invoice Payment
7.1
Licensee
shall pay invoices issued by Licensor regarding the execution of this Agreement
and submitted in accordance with the provisions of this Agreement before the
effective start date of the License.
7.2 Late payment entitles Licensor to charge a
percentage with a maximum of 1% per month over any outstanding amounts of which
payment period has been exceeded by more than 15 days.
7.3 Licensor shall never waive any earnest,
rental, and maintenance moneys nor refund these moneys if they are due because
of late notice or when notice is given during the contract year.
Article 8. Liability
and Indemnification
8.1
If
one of the parties fails to meet any of the obligations under this Agreement,
the other party shall serve notice of default on the corresponding party.
8.2
Notification
hereof shall be given in writing indicating a reasonable term for the
defaulting party in which to meet the corresponding obligations. This term will
be the final term.
8.3
Parties
are liable for professional errors made by their staff or any third parties
contracted by them.
8.4 The party who defaults on his obligations
is liable for payment to the other party for any damage or any future damage
suffered, maximally equalling the Licence amount or the year amount in case of
any earnest money paid.
8.5
The
damage meant under 8.4 is limited to direct damage. Indirect damage will not be
indemnified. Direct damage consists of:
1.
Damage
to software, equipment, and data files of the aggrieved party;
2.
Reasonable
costs incurred in avoiding or reducing direct costs;
3.
Reasonable
costs incurred in assessing direct damage.
8.6
Any
damage claim shall be filed with the other party within 3 months after the
damage occurred. Any claims submitted after this period can be rejected. After
notification, the liable party shall be granted a period of 30 days to perform
the necessary repairs activities.
8.7
Licensors liability is limited to the
amount paid by its insurance company.
Article
9. Proprietary
Rights and User Rights
9.1
All
rights regarding property, copyrights, patents and the like pertaining to
Netpresenter Software, customized software and art work rest with Licensor,
barring the agreed user right.
9.2
Sublicensing
to any third party by the Licensee is not allowed.
Article 10. Safeguarding
10.1
Parties
safeguard each other against any claims from third parties regarding
infringement of any rights of property, copyrights, user rights, or any other
third party rights, with respect to the products used and or produced under
this Agreement, such as software, software documentation, drawings, schemes,
functional and technical designs, and any other documentation, when the
defaulting party is promptly served notice in writing of any such claims by the
other party.
10.2
If
it is determined, both judicially and extra judicially, that use of one of the
products described under 10.1 infringes on any right, through which Licensee's
user right will be withdrawn, Licensor shall for his account and to his
discretion either:
1. Obtain
the corresponding right for Licensee to continue using the products;
2. Substitute
the infringing products with others that do not infringe;
3. Modify
the products to such extent that they no longer infringe;
4. Accept
return shipment of the infringing products on terms to be agreed by parties.
Modification
or substitution cannot lead to any restriction in the usage of the products by
Licensee, unless Licensee agrees with such restrictions. Licensee shall not
reject such agreement on unreasonable grounds.
10.3
Licensor
will not accept any liability or claims regarding infringement of any rights
caused by the use of the products in a fashion for which it has not been
developed.
10.4
Safeguarding
as meant under 10.1 applies under the reservation that the aggrieved party does
not give any written or oral statement, any promises, recognize any rights or
facts, bind or commit themselves to such arrangements towards the third party,
claiming the infringement, without the prior written permission of the
Licensor. The aforementioned does not apply to statements that should be
submitted by or on behalf of a party as a witness in legal proceedings.
Article
11. Transfer
of Rights and Obligations
11.1
Parties
are not allowed to transfer any rights and obligations derived from this
Agreement to third parties, barring prior written consent of the other party,
which cannot be rejected on unreasonable grounds.
Article 12. Force Majeure
12.1
In
the event of force majeure, compliance by the corresponding party with the obligations
derived from this Agreement shall partially or fully be suspended for the
duration of such force majeure, without either party being held to any
indemnification. In case of any occurrance of force majeure, the other party
shall be notified hereof and presented with the necessary documentation
evidencing the occurrence.
12.2
Force
majeure does not include non-compliance or late compliance by a third party
with the obligations held by this third party towards one of the parties,
unless this has been agreed otherwise or unless the corresponding party is able
to prove that non-compliance or late compliance with the obligation is due to
force majeure.
12.3
Force
majeure does in no event refer to: staff shortage, strikes, sick leaves, late
supplies or defective material, any Shortcomings on the part of a third party
contracted by one of the parties, or insolvency.
12.4
In
case of force majeure, the final delivery date of the Netpresenter Software
shall be extended with the duration of the force majeure.
Article 13. Secrecy
13.1
Parties declare to keep confidential all information that has come
to their knowledge before and during execution of the agreements and that
has been declared of a confidential or secret nature or information that
parties should have known to be confidential or secret.
13.2
Licensee
shall maintain strict secrecy regarding any information about the setup,
structure, and internal operations of the Netpresenter Software.
13.3
Barring
prior written permission by the other party, neither party shall divulge any
information that has emerged during the execution of this Agreement to any
third parties.
Article 14. Termination
14.1 Either party is entitled to dissolve this
Agreement extrajudicially by means of a registered notification if the
defaulting party fails to meet his obligations under this Agreement even after
the reasonable term specified in Article 8 following the notification of
default.
14.2
Parties
are entitled, without any further notice, to dissolve this Agreement
extrajudicially by means of a registered notification if the other party has
been granted (provisional) suspension of payment, files for bankruptcy, or is
declared bankrupt, the business of the other party is wound up or suspended, a
substantial part of the assets is garnished, or any other reasons why the party
is no longer considered able to meet the obligations under this Agreement.
14.3
Licensee
is entitled without any further notifice to dissolve this Agreement
extrajudicially by means of a registered letter if Licensor severely defaults
on his obligations.
14.4
Each
of the parties is entitled to dissolve this Agreement extrajudicially by means
of a registered letter if the other party appeals to force majeure and the
corresponding term has exceeded a period of one month, or if it is determined
that this term will exceed the period of one month.
14.5
Termination
does not have retroactive effect.
Article 15. General
15.1
Licensee's
General Purchase and Payment Conditions as well as any other general or
specific conditions are not applicable if not agreed otherwise.
15.2
Modifications
or amendments to this Agreement are only applicable if such is agreed in
writing.
15.3
The
Agreement, including the annexes mentioned in the Agreement, is the only true
representation of the agreement between both parties regarding the purchase of
Netpresenter Software.
15.4
Licensee
agrees to comply to any national and international regulatory requirement
including privacy regulations.
15.5 This Agreement, to which these General
Licence Terms apply, is subject to the laws of the United Kingdom.
Article 16. Arbitration
16.1
Each
dispute arising from the drafting, the interpretation, or execution of this
Agreement, as well as any other dispute related to this Agreement, either legal
or factual, shall without exception be settled before the competent judge in
London.
16.2
Parties
may agree that a dispute as understood in the previous Section, may be subject
to arbitration in accordance with a special agreement between the parties or
that a binding advice herein should be requested.
A dispute exists if one of the
parties has notified the other party in writing that a dispute has occurred,
accompanied with a summary account of the disputes and their reasons.
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