CENDIO END USER LICENSE AGREEMENT 3.3
IMPORTANT: PLEASE READ THIS END USER LICENSE AGREEMENT
CAREFULLY. INSTALLING OR USING CENDIO SOFTWARE CONSTITUTES
ACCEPTANCE OF THIS AGREEMENT.
This License Agreement ("License") is entered into by you, the Licensed
User or representative of the Licensed User ("Licensee") and Cendio AB.
THIS IS A LICENSE AND NOT A SALE
1. License
1.1 Subject to the terms and conditions of this License, Cendio
grants solely for use by Licensee a non-exclusive, non-transferable
license to use the software programs ("Program(s)") and related user
guides ("Documentation") solely for its own internal business purposes,
including for the provision of offering hosting solutions where you
remain the Licensee, at the site specified in the applicable Cendio
business records and solely in accordance with the accompanying
Documentation.
1.2 All proprietary rights and trade secrets in the Program(s) and
the Documentation, and all copies (in whole or part) shall be the
exclusive property of Cendio (and its licensors), and are protected by
copyright laws and international treaty provisions. Licensee shall have
no right, title, or interest therein except for the rights expressly
granted under this License.
1.3 Licensee may not use, copy, alter, merge, adapt, modify, rent,
or lease the Program(s) or the Documentation, or any copy thereof, in
whole or in part, except as expressly provided in this License or under
applicable statutes.
1.4 Licensee acknowledges that the Program(s) contains certain
third party software for which Cendio has obtained the right to
sub-license to Licensee under all the terms hereof save as set out
expressly in the license agreements accompanying such products.
1.5 The Program(s) may consists of software that provide services
on a computer ("Server Program(s)") and software that allows a computer
to access or utilize the services provided by the Server Program(s)
("Client Program(s)"). The Licensee must have user licenses provided by
Cendio ("User License(s)") corresponding to the number of physical
persons that have Server Program(s) or that have other software that is
being monitored by the Server Program(s), running on behalf of said
person ("Concurrent User(s)"). A non-human operated device shall be
counted as a Concurrent User in addition to all individuals whenever
such a device accesses the Server Program(s).
1.6 User License(s) may be perpetual or limited to an expiration
date ("Expiration Date"). After the Expiration Date, if any, the
Licensee is no longer entitled to use any of the User License(s).
1.7 A User License(s) is valid for the version of the Server
Program(s) specified in the User License(s) and any older versions of
the same Server Program(s). The User License(s) is also only valid for
one specific installation of the Server Program(s). Two separate
installations, even by the same legal entity, require separate User
Licenses.
1.8 The Licensee may reassign one or more User License(s) to a
different installation any number of times. A User License may
only be used on a single installation of the Server Program(s) at a
time.
1.9 If the Licensee has no valid User Licenses, then the Licensee
may utilize the Server Program(s) for up to five (5) Concurrent Users.
Where the Licensee uses the Program(s) without a valid User License,
the warranty referenced in Section 4.1 and the indemnity in Section 6
is no longer applicable.
1.10 The Client Program(s) may be redistributed, free of charge,
provided all copyright notices and the terms of this License are not
altered in any way or removed.
1.11 Cendio provides no maintenance or support of the Program(s)
under this License.
2. Open Source Software
2.1 The Program(s) may include certain third party open source and
free software components ("Open Source Components"), each of which has
its own copyright and its own license conditions ("Open Source
License"). A list of included Open Source Components and their
respective licenses can be found in the open_source_licenses.txt file.
2.2 Upon request Cendio will deliver all the corresponding source
code for the Open Source Components at the cost of postage charges
incurred. This offer to obtain the source code is valid for three years
from the date you acquired the Program(s).
2.3 To the extent any Open Source License grants the Licensee
rights to use, copy or modify the Open Source Component that are
broader than the rights granted in Section 1, then such rights shall
take precedence over the rights and restrictions granted in this
License solely for such Open Source Components.
2.4 The Open Source Components are provided "as is" by the third
party licensors who disclaim all liabilities, damages, (even if they
have been advised of the possibility of such damages), warranties,
indemnities and other obligations of any kind, express or implied, with
regard to the Open Source Components. The Open Source Components are
excluded from any indemnity provided by Cendio in this License. Nothing
in the foregoing affects any performance warranty provided by Cendio
with regard to the Program(s) as a whole.
3. Confidentiality
3.1 Confidential Information. "Confidential Information" shall mean
business information, pricing and terms, the Programs, Documentation,
technical information, algorithms, source code of the Programs, future
plans, product road maps, know-how, trade secrets, and any other
information of a non-public nature that is known or used by a party.
Confidential Information includes information generated as a result of
the activities of the parties hereunder, as well as information owned by
a party prior to or after the date hereof and made available to the
other party hereunder, whether disclosed in writing, orally or in any
other way. Confidential Information shall be held confidential at all
times for Programs, and during the 5 (five) year period from the date of
disclosure for other Confidential Information. Neither party shall
disclose, directly or indirectly, any Confidential Information of the
other party to any third person, firm or corporation without the prior
written consent of the other party. Each party shall use protective
measures no less stringent than that party uses to protect its own
similar proprietary information, which protective measures shall under
all circumstances be at least reasonable measures designed to ensure
the continued confidentiality of the Confidential Information. The
restrictions on disclosure of Confidential Information do not extend to
any item of information which (i) is or becomes publicly known without
breach of this License, (ii) is lawfully received by the receiving
party from a third party who lawfully possesses the information and who
is not bound to keep such information confidential, whether by contract
or law, (iii) is published or otherwise made known to the public by the
disclosing party, or (iv) is generated independently by the receiving
party, without use of or reference to Confidential Information. Either
party may disclose Confidential Information required to be disclosed
pursuant to a subpoena or as otherwise required by law or regulation,
provided that the receiving party where legally permissible appeals such
requirement and that prior written notice of such required disclosure is
furnished to the disclosing party as soon as possible in order to afford
the disclosing party an opportunity to seek a protective order.
4. Limited Warranty and Disclaimer
4.1 Cendio warrants that the Program(s) will operate substantially
as set forth in the accompanying Documentation for a period of
90 (ninety) days following delivery of the Program(s) to Licensee.
4.2 Cendio warrants that prior to delivery of the Program(s) to
Licensee, Cendio has used commercially reasonable efforts to prevent
the Program(s) and any modified or enhanced versions of the Program(s)
prepared by, or at the direction of, Cendio from being infected with,
any "worms", "viruses", "Trojan Horses", "protect codes", "data
destruct keys" or other programs or programming devices that might be
used to access, modify, delete or damage the Program(s), or other
software, computer hardware or data of Licensee.
4.3 Licensee's sole and exclusive remedy for breach of any of the
above warranties shall be, at Cendio's option, the repair or
replacement of the Program(s) or the media, or the refund of the
license fee paid by the Licensee, reduced by a reasonable depreciation
based on the time the Program(s) have been in use.
4.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 4 AND
NOTWITHSTANDING ANY OTHER TERMS IN THIS LICENSE, CENDIO MAKES NO
EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE PROGRAM(S) OR
DOCUMENTATION, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT
OF THIRD PARTY RIGHTS. CENDIO DOES NOT WARRANT THAT ANY PROGRAM(S) WILL
BE ERROR-FREE, OR THAT ANY DEFECTS THAT MAY EXIST IN ANY PROGRAM(S) CAN
BE CORRECTED.
5. Limitation on Liability
5.1 IN NO EVENT SHALL CENDIO BE LIABLE FOR ANY LOSS OF PROFITS,
USE, BUSINESS, DATA OR INFORMATION, OR FOR ANY INCIDENTAL, INDIRECT,
SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING BUT
NOT LIMITED TO DAMAGES RESULTING FROM LOSS OF ANTICIPATED SAVINGS OR
LOST DATA, EVEN IF CENDIO HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN
OF THE POSSIBILITY THEREOF, OR FOR ANY INCIDENTAL, INDIRECT, SPECIAL,
CONSEQUENTIAL OR EXEMPLARY DAMAGES RESULTING FROM ANY AND ALL CLAIMS BY
ANY THIRD PARTIES. THE AGGREGATE LIABILITY OF CENDIO HEREUNDER WHETHER
IN CONTRACT OR IN TORT SHALL IN NO EVENT EXCEED THE LESSER OF THE FEES
PAID BY LICENSEE OVER THE PRECEDING 12 (TWELVE) MONTHS OR $100,000
(ONE HUNDRED THOUSAND DOLLARS).
6. Indemnity
6.1 Cendio shall indemnify Licensee for any claim, demand or cause
of action by a third party ("Demand") to the extent that it is based
upon a claim that the Program(s) infringe any patent, trademark, or
Berne Convention copyright, or that the Program(s) misappropriate any
trade secret of any third party within the country in which the site is
located. The foregoing indemnification is conditioned on Licensee
notifying Cendio promptly in writing of such Demand, Licensee not making
any admissions or prejudicial statements, Licensee giving Cendio sole
control of the defense thereof (and any negotiations for settlement or
compromise thereof), and Licensee cooperating in the defense thereof at
Cendio request, provided that Licensee may, at its own expense, assist
in such defense if it so chooses. Cendio, at its sole option and expense
may: (a) procure for Licensee the right to continue using the
Program(s); or (b) substitute a non-infringing version of the Program(s)
so that the Program(s) become non-infringing and still conform to the
applicable specifications; or (c) return the license fee paid by
Licensee hereunder for the Program(s), less an amount equal to straight
line depreciation of the Program(s) over four years, and Licensee shall
immediately return the Program(s) to Cendio. Licensee shall not incur
any costs or expenses on behalf of Cendio under or pursuant to this
Section without Cendio's prior written consent.
6.2 Cendio shall have no liability to Licensee for any Demand by a
third party alleging infringement or misappropriation based upon
(a) any use of the Program(s) in a manner other than as permitted in
this License; or (b) any use of the Program(s) in combination with any
product not provided by Cendio, to the extent that such Demand is
directed against the combination. Notwithstanding the foregoing, no
indemnification is given in relation to Open Source Components. The
licensors of any third party software may extend indemnities which are
to be found in the third party licenses referred to in 1.4 above.
6.3 THE FOREGOING STATES THE ENTIRE LIABILITY OF THE PARTIES AND
LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR SUCH DEMANDS.
7. Termination
7.1 Cendio may terminate this License immediately upon written
notice to Licensee if Licensee breaches the provisions of Section 1
(License). 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.
7.2 ON TERMINATION OF THIS LICENSE FOR ANY REASON LICENSEE SHALL
CEASE USING THE PROGRAM(S) AND THE DOCUMENTATION AND ALL COPIES OF THE
SAME SHALL BE IMMEDIATELY RETURNED TO CENDIO UPON WRITTEN REQUEST.
7.3 The operation of Clauses 3, 4, 5, 7 and 8 shall survive the
termination of this License.
8. General
8.1 The Program(s) is subject to laws and regulations of the United
States and European Union that restrict its export. Licensee agrees not
to export or "re-export" (transfer) the Program(s) unless all
applicable United States, European Union and other relevant government
export controls and approvals have been complied with.
8.2 Cendio licenses products for ultimate end use by federal
government agencies and other federal government customers ("federal
government customers") only under the following conditions. Rights
granted herein include only those rights customarily provided to end
use customers of Program(s) and Documentation as defined in this
License. This customary commercial license in software is provided in
accordance with FAR 12.211 (Technical Data) and 12.212 (Computer
Software) and, for Department of Defense purchases, DFAR 252.227-7015
(Technical Data - Commercial Items) and DFAR 227.7202-3 (Rights in
Commercial Computer Software or Computer Software Documentation). If a
federal government or other public sector customer has a need for
rights not conveyed under these terms, it must negotiate with Cendio to
determine if there are acceptable terms for transferring such rights,
and a mutually acceptable written agreement specifically conveying such
rights must be executed by both parties. To the extent that Licensee
sublicenses Program(s) pursuant to the terms and conditions of the
License to any sub-licensee that is a federal government agency or
other federal government customer, Cendio will accept only the
following subcontract or flow-down provisions: FAR 52.222-26, "Equal
Opportunity"; FAR 52.222-35, "Affirmative Action for Disabled Veterans
and Veterans of the Vietnam Era"; and FAR 52.222-36, "Affirmative
Action for Workers with Disabilities." Any additional subcontract or
flow-down provisions, including any provisions imposed by federal,
state, local or other governmental or quasi-governmental entities, must
be negotiated between the parties and reflected in a mutually
acceptable written agreement executed by both parties.
8.3 Cendio and its licensors shall have the right to conduct an
audit of (and to copy) Licensee's records on reasonable notice and not
more than once in each twelve month period to verify that Licensee is
complying with the terms hereof. In the event that an underpayment is
revealed as the result of such audit Licensee shall immediately upon
being so requested by Cendio pay such underpayment together with the
costs of any such audit.
8.4 If one or more provisions of this License are held to be
illegal or unenforceable under applicable law, such illegal or
unenforceable provision(s) shall be limited or excluded from this
License to the minimum extent required so that this License shall
otherwise remain in full force and effect and enforceable in accordance
with its terms.
8.5 This License shall be governed by and construed in accordance
with Swedish law. Any dispute, controversy or claim arising out of or
in connection with this License, or the breach, termination or
invalidity thereof shall be finally settled by arbitration administered
by the Arbitration Institute of the Stockholm Chamber of Commerce (the
"SCC"). The Rules for Expedited Arbitrations shall apply where the
amount in dispute does not exceed EUR 200,000. Where the amount in
dispute exceeds EUR 200,000 the Arbitration Rules shall apply. The
amount in dispute includes the claims made in the Request for
Arbitration and any counterclaims made in the Answer to the Request for
Arbitration. 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.
8.6 Licensee agrees that this License is the complete and exclusive
statement of the mutual understanding between the parties and
supersedes all previous written and oral agreements and communications
relating to the subject matter of this License. It may not be modified
or waived except in writing signed by authorized representatives of
both parties.
8.7 All notices under this License shall be in writing, and shall
be deemed delivered 5 (five) days after sending in the case of notices
sent by post or the next business day after sending in the case of
notices by email.
8.8 Licensee shall not assign, transfer, or sublicense any
obligations or benefit under this License without the prior written
consent, which shall not be unreasonably withheld, of Cendio (and any
such attempt shall be void). Cendio may assign this License in whole or
in part.
8.9 The Program(s) are not specifically developed or licensed for
use in any nuclear, aviation, mass transit or medical application or in
any other inherently dangerous applications. Neither Cendio nor its
suppliers shall be liable for any claims or damages arising from such
use and Licensee agrees to indemnify and hold harmless Cendio and its
suppliers from any claims for losses, costs, damages, or liability
arising out of or in connection with such use of the Program(s).
