CENDIO THINLINC SUBSCRIPTION AGREEMENT 1.1
This agreement ("Agreement") describes the terms and conditions
associated with upgrades and support for Cendio ThinLinc ("Product").
1. Upgrades
1.1 The Customer is entitled to receive user licenses for any version
of the Product released during the period that this Agreement is valid.
1.2 Updated user licenses will be delivered within two business days
from the time the request has been received by Cendio. Swedish public
holidays are not considered business days.
1.3 Cendio is free to deny any request for user licenses if the
Customer has already received user licenses for the requested version of
the Program. Cendio is also free to deny requests for a greater number
of user licenses than those specified in the associated purchase order.
2. Support
2.1 Cendio will provide support services for resolving technical
problems in the Product. All services will be provided remotely by email.
Support is given in English only unless the Customer is in a location
where localised support has been made available by Cendio.
2.2 Support requests will be handled by Cendio during office hours,
08:00 CET to 17:00 CET, Monday through Friday. No support services are
given during Swedish public holidays.
2.3 Cendio will respond to a new support request within two business
days, subject to the limitations specified in section 2.2.
2.4 In situations where Cendio cannot provide a satisfactory
resolution to Customer's critical problem through normal support methods,
Cendio may engage its product development team to create a so called
hotfix to the Product. Cendio retains all right, title and interest in
and to such hotfixes. Hotfixes are designed to address a specific
Customer situation and may not be distributed by Customer outside
Customer organization, without written consent from Cendio. Limited
regression testing is performed on hotfixes. Hotfixes can be released as
updates to other customers. Cendio is free to limit the amount of
resources devoted to developing a hotfix and does not guarantee that a
hotfix will be delivered within a certain time.
2.5 Cendio's performance is subject to Customer's fulfillment of the
following responsibilities:
a) Customer may be asked by Cendio to perform certain problem
determination activities. These activities may include performing
network traces, capture error messages and collecting
configuration information. Customer may also be requested to
perform problem resolution activities including changing product
configurations, installing new versions of software or new
components, or modifying processes. Customer agrees to fulfill
such requests.
b) Customer is responsible for implementing such procedures
necessary to safeguard the software and data from unauthorized
access and to reconstruct lost or altered files resulting from
system failures.
3. Exclusions
3.1 Cendio is not required to provide any support services relating
to problems arising out of (i) Customer's failure to implement all
currently available Upgrades to the Product; (ii) changes to the
operating system or IT- environment which adversely affect the Product;
(iii) any alterations of or additions to the Product performed by parties
other than Cendio; (iv) use of the Product on other CPU and peripherals
than for which the Product is designed and licensed; or (v) use of the
Product on other operating systems than the Product is licensed for; or
(vi) versions of the software released over three years ago. By
"Upgrades" is meant any new versions, updates, or hotfixes. Technical
Support does not include development work on software not licensed from
Cendio or development work for enhancements or functions that are outside
the documented functionality of the Product.
4. Warranty and Limitation of Liability
4.1 Cendio will use all reasonable commercial efforts to provide the
support requested by Customer under this Agreement in a professional and
workmanlike manner, but Cendio cannot guarantee that every issue or
problem raised by Customer will be resolved or guarantee a certain
resolution time. Cendio makes no warranties beyond what is explicitly
stated in this Agreement.
4.2 Either Party's liability to pay damages is limited to direct
losses amounting to a total of twelve (12) months' support fees. Provided
there has been no intent or gross negligence, neither party shall have
any liability for lost profits or other indirect damages or losses,
including the other party's liability to compensate any third party or
loss of information.
5. Term and Termination
5.1 This Agreement is valid for the duration specified in the
associated purchase order, starting from the date of delivery. If there
is no duration specified then this Agreement will be valid for (1) year.
5.2 Either party may at its option terminate this License immediately
upon written notice in the event that the other party: (a) breaches any
term of this License, which breach remains uncured for a period of
30 (thirty) days after written notice of such breach to the other party;
or (b) becomes insolvent or asserts that it is insolvent, fails to pay
its general obligations as they become due, institutes or has instituted
against it any proceeding, arrangement, receivership or assignment for
the benefit of creditors, or files or has filed against it any petition
under applicable bankruptcy laws.
6. Confidentiality
6.1 Cendio may through this Agreement have access to certain
information which Customer deems confidential. Cendio shall for a period
of two (2) years from the date of receipt of confidential information
maintain such information confidential in the same manner and to the same
extent as Cendio protects its own confidential information of like kind
or similar nature. Cendio shall only disclose confidential information to
those of Cendio's employees who have a direct need to know this
information. Cendio shall maintain confidentiality through confidentiality
agreements with the employees and other appropriate measures. Upon
request by Cendio, Customer shall advise whether it considers any
particular information to be confidential.
6.2 The provisions of this Section 6 shall not apply to information:
(i) which is or becomes available to the public other than by breach of
this Agreement or of any other duty; (ii) which is already in Cendio's
possession prior to disclosure by Customer; (iii) which Cendio has
received by a third party without restrictions as to confidentiality; or
(iv) is developed by Cendio independently from Customer's information.
7. General Provisions
7.1 Modifications of this Agreement, or waiver of any rights, shall
be effective only in writing.
7.2 The waiver of a breach of agreement shall not constitute a waiver
of any other right in this Agreement or of the right to call attention to
any subsequent breach of agreement.
7.3 All notices concerning this Agreement shall be in writing, and
shall be delivered personally, by e-mail or by registered letter. Notice
will be deemed served a) at the time of delivery, if delivered
personally, b) the next working day, if delivered by e-mail during normal
office hours, or c), three (3) working days after mailing, if sent by
mail.
7.4 Neither party shall be liable for any damage or loss resulting
from causes beyond such party's reasonable control.
7.5 This Agreement constitutes the entire agreement between the
parties hereto with respect to upgrades and support services for the
Product.
7.6 The terms of this Agreement supersede any possible contrary or
additional terms in any Customer-issued purchase order or other
documentation.
7.7 Customer shall not assign its rights or obligations under this
Agreement without the prior written consent from Cendio, which is not to
be unreasonably withheld.
7.8 This Agreement shall be governed by and construed in accordance
with Swedish law. Any dispute, controversy or claim arising out of or in
connection with this Agreement, or the breach, termination or invalidity
thereof shall be finally settled by arbitration in accordance with the
Rules of the Arbitration Institute of the Stockholm Chamber of Commerce.
The arbitral tribunal shall be composed of a sole arbitrator. The place
of arbitration shall be Linköping. The language to be used in the
arbitral proceedings shall be English. If the dispute, inclusive of any
counterclaims, claims for set-off and interest should comprise of an
amount less than $200,000, exclusive of VAT, the Rules for Expedited
Arbitrations of the Arbitration Institute of the Stockholm Chamber of
Commerce shall be applied.
