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The purpose of these LICENSE TERMS AND CONDITIONS is to establish the terms for the CUSTOMER’s use of SMART PACKAGE STUDIO, vers. 1.0 (hereafter referred to as “the PROGRAM”) to which the CUSTOMER has been granted user rights by SoftwareCentral (“SWC”) supplied by SWC. All documentation, manuals and subsequent updates and/or upgrades are collectively regarded as constituting the PROGRAM.
The PROGRAM is a standard product, supplied by SWC with the functions detailed in the sales material, along with any associated documentation. SWC is not liable for ensuring that the PROGRAM satisfies any functionality assumed to be inherent in the product by the CUSTOMER nor for satisfying any assumed requirement.
Subject to payment of applicable fees, SWC grants to the CUSTOMER one, non-exclusive subscription based user right (LICENSE) to the PROGRAM that is restricted to a time period of one year from the date of invoice and any renewal period. The user right for the PROGRAM applies to the agreed number of users
The CUSTOMER may only use the PROGRAM for the CUSTOMER’s and CUSTOMER’s Group Entities’ data processing purposes.
Subject to the CUSTOMER paying the applicable fees for a Service Provider license, the CUSTOMER may allow customers of the CUSTOMER or a CUSTOMER Group Entity to use the outcome of the PROGRAM provided the use of the outcome of the PROGRAM is solely within the scope set out in this Clause and provided that the CUSTOMER will be liable towards SWC for all acts and omissions of such parties, including for the compliance with these LICENSE TERMS AND CONDITIONS.
The CUSTOMER shall not directly or indirectly reverse engineer, decompile or disassemble the PROGRAM.
All rights not specifically granted hereunder are expressly reserved.
SWC owns the full property, patent, copyright, trademark and other intellectual property rights to the PROGRAM , and these rights shall remain with SWC. The CUSTOMER shall respect SWC’s rights and is monetarily liable, without any limitation, in the event of these rights being infringed, including the distribution of the PROGRAM to a third party. The CUSTOMER is not entitled to crack or change any security codes, nor is the CUSTOMER entitled to change or remove limitations in the PROGRAM or in the media on which the PROGRAM is supplied in respect of rights conditions, trademarks or suchlike. The CUSTOMER shall ensure that the PROGRAM does not pass into the possession of a third party. The CUSTOMER may make any necessary back-ups, but may not produce copies of the PROGRAM.
The CUSTOMER is not entitled to make changes to the PROGRAM. In the event of the CUSTOMER or a third party accessing the source code or making changes to the PROGRAM, SWC’s obligations, as stated in these LICENSE TERMS AND CONDITIONS, shall be rendered null and void with immediate effect without notice and SWC shall not be liable for the consequences of any such source code incursions or changes.
Except as set forth above, the CUSTOMER is not entitled to sell, hire out, loan, allow use of, or in any other way transfer or distribute the PROGRAM or the PROGRAM LICENSE to a third party. The PROGRAM may not be used in connection with facilities management, hosting, outsourcing or similar activities.
SWC provides for a period of 6 (six) months from the date of delivery a right of remedy as a result of the PROGRAMS not performing in substantial accordance with the documentation delivered with the PROGRAMS consisting of, at SWC’s option, (i) repairing or replacing the PROGRAMS which are returned to SWC, or (ii) taking return of the PROGRAMS and refunding the price paid for such PROGRAMS. SWC will have no obligation to fix errors in the Product caused by accident, misuse, abuse, improper operation, misapplication, or any other cause external to the PROGRAMS from SWC.
Except as specifically stated herein, SWC’s exclusive liability and the CUSTOMER’s sole and exclusive remedy for any defect or delay shall be licensed subject to the limitation on and exclusion of liability.
This limitation applies even if repair, replacement or a refund for the PROGRAMS does not fully compensate the CUSTOMER for any losses; or SWC knew or should have known about the possibility of the damages.
To the maximum extent permitted by law, except as may be expressly stated in these LICENSE TERMS AND CONDITIONS, SWC and its group disclaim all representations, warranties and conditions, either express or implied, statutory, by usage of trade or otherwise including but not limited to any implied warranties or conditions of merchantability, non-infringement, title, satisfactory quality or fitness for a particular purpose
If a third party claims that the PROGRAM provided by SWC infringes third-party rights, the CUSTOMER shall immediately inform SWC in writing and SWC shall take over the defense of the claim. SWC shall at its cost have full control of any proceedings arising out of any infringement of third-party rights. The CUSTOMER may not make any admission as to liability and shall not agree to any settlement or compromise any action without the prior written consent of SWC. The CUSTOMER shall give SWC all reasonable assistance in respect of any such proceedings.
SWC agrees to indemnify the CUSTOMER against any damages and costs imposed on the CUSTOMER by a court of competent jurisdiction or any settlement sum approved by SWC as a result of a claim by a third party that the use by the CUSTOMER of the PROGRAM in accordance with the terms of these LICENSE TERMS AND CONDITIONS infringes the intellectual property rights of that third party, provided that such indemnity shall only apply if and to the extent that the CUSTOMER has not been provided with a work around solution or an alternative license obtained by SWC from such third party.
If SWC – commercially reasonable terms – cannot provide a work around or an alternative license, then SWC can terminate these LICENSE TERMS AND CONDITIONS with respect to the affected parts of the PROGRAM. In this event the CUSTOMER shall refrain from using the affected parts of the PROGRAM and SWC shall return the paid fees proportionally to the affected parts of the PROGRAM, however, reduced by any reasonable value for the CUSTOMER’s use of the PROGRAM until termination.
The foregoing rights of the CUSTOMER shall be the sole and exhaustive remedies available to the CUSTOMER in the event of third-party infringement claims.
SWC shall not be liable for indemnifying the CUSTOMER for any costs or damages if the infringement claim (i) is based on the use of an amendment, change or modification made by any person (other than any amendment, change or modification made by SWC or any supplier to SWC); (ii) is based on a combination of the PROGRAM with other programs or services not provided by SWC; (iii) if the PROGRAM is not being used in accordance with the documentation; or (iv) if the alleged infringement would be avoided or otherwise eliminated by the use of an upgrade or update, release, or hot fix to the PROGRAM.
If the CUSTOMER becomes aware of any infringement or potential infringement of SWC intellectual property rights it shall promptly notify SWC in writing.
The CUSTOMER has access to 1st level support (telephone support 9am – 4pm). Such request shall be provided by an agent appointed specifically by the CUSTOMER or its technical queries representative (written or telephonic) concerning the use of the PROGRAM and 2nd level support (technical support 9am – 4pm). SWC is always responsible for providing 3rd level support (fixing errors in the PROGRAM), as well as UPDATING and UPGRADING, including correcting errors in the latest version of the PROGRAM. SUPPORT is provided weekdays 9am – 4pm, i.e. every day except Saturdays, Sundays, Danish public holidays and Constitution Day, Christmas Eve New Year’s Eve and New Year’s Day. The CUSTOMER is obliged to follow all verbal and written instructions given by SWC, including reinstallation, configuration or use of the PROGRAM.
Subject to the CUSTOMER paying all license fees when due, SWC shall provide the maintenance services in accordance with SWC’s Support Lifecycle Policy as amended from time to time. The Support Lifecycle Policy is available at https://www.softwarecentral.com or https://www.package-studio.com/
The CUSTOMER is entitled to report errors concerning the PROGRAM to SWC within the above timeframe. Errors are categorized by priority: 1) The error results in a production stoppage for all users, 2) Serious error, i.e. an error that results in a significant fall in production or makes sub-functions inaccessible, 3) Other errors. SWC shall start work to correct priority 1 errors within 1 (one) day and priority 2 errors within 3 (three) days of receiving an adequately reproduceable error description from the CUSTOMER. The CUSTOMER will be notified if priority 3 errors have been corrected in a later version as an UPGRADE or UPDATE in the form of a generally issued bug fix. SWC is regarded to have commenced error correction work from the date on which a connection is established with the CUSTOMER’s system and remote support is provided. SWC is not responsible for delays in dealing with the fault that have arisen between the CUSTOMER.
The CUSTOMER is only entitled to SUPPORT to the extent expressly described above. The CUSTOMER is not entitled to SUPPORT in relation to the following conditions: 1) conditions that can be attributed to the CUSTOMER and others who have been granted access to the system by the CUSTOMER, 2) conditions in the PROGRAM attributable to attempts by the CUSTOMER or third parties to expand functions or make additions to the PROGRAM, 3) conditions that can be attributed to incorrect use of the PROGRAM, including inaccurate keying in of data or use of the PROGRAM in contravention of accompanying documentation, 4) conditions that may be attributed to third-party software for which SWC is not responsible, including subsequent conflicts between the PROGRAM and the CUSTOMER’s other systems (both hardware and software), which may have arisen as the result of later installations, 5) external influences on the CUSTOMER’s systems, including network errors, interference from other units, security breaches, etc. that are not attributable to SWC.
The SUPPORT does not cover the following:
• hardware, software or other components which are not part of the PROGRAM;
• errors or problems caused by or contributed to by hardware, software or other components which are not part of the PROGRAM;
• errors or problems caused by the CUSTOMER or an end user not following the instructions and recommendations from SWC;
• errors or problems caused by third parties not acting on behalf of SWC; and
• software developed or modified specifically for the CUSTOMER.
Upon request from the CUSTOMER, and in accordance with separate agreement, SWC may make additional software available to the CUSTOMER. Such software is made available “as is” and SWC shall have no liability for the contents or effects of such software, which shall not be considered part of the PROGRAM until made available as part of an UPDATE or UPGRADE, if applicable. Such software may require that the CUSTOMER upgrades the PROGRAM to the latest UPDATE or UPGRADE.
SWC will, to the greatest possible extent, provide support to the CUSTOMER in answering queries, solving problems or correcting errors that are not covered by the above in exchange for payment in accordance with SWC’s hourly Service tariff applicable on each occasion. Furthermore, SWC is entitled to invoice the CUSTOMER for support provided or attempts to provide support requested by the CUSTOMER in the belief that the support was covered by the above if the CUSTOMER was informed that the support provided was not covered.
Once payment has been made, the CUSTOMER is entitled to download new UPGRADES (new versions) and UPDATES (bug fixes) from the Smart Package Studio download site. Similarly, the SUPPORT also includes: Download of updated manuals and any other documentation concerning UPGRADES and UPDATES where such is issued by SWC. UPGRADES and UPDATES become covered by these terms and conditions, including provisions of the license terms and conditions in respect of error correction, etc., on their date of release on the download site.
The PROGRAM is considered to have been delivered once the CUSTOMER has completed the download of the Licensed Software from SWC.
The license fees are specified in the Individual Terms.
Unless otherwise stated, all prices are exclusive of VAT and other applicable taxes which shall be paid by the CUSTOMER. Support includes SUPPORT of up to 30 minutes per error, given within the quoted response times. All on-site support and additional time used in support calls lasting longer than 30 minutes that are not covered by the remedy and are not caused by errors in SWC shall be charged at SWC’s hourly error correction tariff applicable on each occasion. The CUSTOMER pays for at least one year in advance.
Prices are index regulated annually on 1 January at no further notice in accordance with Statistics Denmark’s net price index for the preceding calendar year.
In the event that withholding tax is paid or payable in relation to the license fees, the CUSTOMER shall bear and be responsible for and pay the amount of any such tax, unless SWC is fully compensated for such withholding tax in the country in which SWC is tax resident.
All invoices issued by SWC shall be paid within 30 (thirty) days from the date of the invoice.
Late payments will incur interest at a rate of 2% (two per cent) per month until payment is received.
The CUSTOMER shall:
• correctly implement and use a supported Update or Upgrade;
• use an SWC approved version and configuration management system for managing the PROGRAM;
• provide SWC with necessary information in the format specified by SWC in order to assess any error or problem;
• always ensure availability of necessary back-up of relevant systems and data, so that the CUSTOMER’s data may be reconstructed at any given time;
• as far as necessary provide SWC with access to the PROGRAM as implemented by the CUSTOMER;
• follow all reasonable directions given by SWC in respect of use of the PROGRAMS; and
• keep its hardware and/or software continuously updated as applicable in order for SWC to provide the maintenance services.
Any costs related hereto shall be borne solely by the CUSTOMER.
The CUSTOMER is responsible for adherence to applicable data protection law. SWC shall not be given access to any personal data relating to the CUSTOMER or the customers of the CUSTOMER.
The parties are liable to pay compensation in accordance with the general regulations of Danish law and the content of these LICENSE TERMS AND CONDITIONS, including specified amount limits and maximums, although SWC assumes no liability for operating losses, time losses, loss of profit, interest losses and other indirect losses. SWC is not liable for loss or reconstruction of data. The CUSTOMER shall itself rebuild this data from its back-ups. The CUSTOMER is responsible for backing up data on a daily basis. The CUSTOMER is responsible for ensuring that data is stored, held and maintained in a secure location. SWC is not responsible for breaches attributable to situations where the CUSTOMER bears the risk. SWC’s total liability under these LICENSE TERMS AND CONDITIONS shall be no more than an amount equivalent to the license fee paid by the CUSTOMER or the SERVICE fees paid within the preceding 12 (twelve) months calculated from the time when the damage occurred. SWC is not liable for ensuring that the PROGRAM satisfies any functionality assumed to be inherent in the product by the CUSTOMER nor for satisfying any assumed requirement.
SWC assumes product liability in accordance with the regulations set out in EU directive 85/374/EEC as implemented in Denmark to the extent that this cannot be waived by agreement, but otherwise renounces product liability on any other basis.
The CUSTOMER shall keep the PROGRAM, any deliverable by SWC as part of the SUPPORT, documentation, the terms and conditions of these LICENSE TERMS AND CONDITIONS, and all other commercial, financial, technical information disclosed to or otherwise learned by the CUSTOMER, its employees or advisors, in connection with these LICENSE TERMS AND CONDITIONS (whether disclosed orally, in documentary form, by demonstration or otherwise) confidential.
In addition, any non-disclosure agreement entered into between the Parties shall apply for the duration of these LICENSE TERMS AND CONDITIONS and five years after termination of these LICENSE TERMS AND CONDITIONS.
If the CUSTOMER wishes to provide access to the PROGRAM or to any deliverable by SWC as part of SUPPORT, documentation to a third party providing consultancy or any services to the CUSTOMER, such disclosure is permitted, provided such third party has signed and executed either a non-disclosure agreement directly with SWC or a non-disclosure agreement approved by SWC prior to any disclosure. The CUSTOMER shall be liable for any misappropriation or disclosure of the PROGRAM or any of the materials set out above by such third party in breach of these LICENSE TERMS AND CONDITIONS and any non-disclosure agreement.
Upon termination of these LICENSE TERMS AND CONDITIONS, for whatever reason, the Parties shall immediately return or irrevocably delete all documents or other materials, which have been received from the other Party (including but not limited to source material), except materials that must be maintained for archiving purposes in accordance with statutory requirements. Upon the other Party’s request each Party shall confirm the deletion in a written statement to the other party.
SWC shall not in any way be restricted from using any general and specific knowledge and knowhow obtained from the CUSTOMER.
If the CUSTOMER transfers any personal data to SWC, then the CUSTOMER represents and provides to SWC its clear consent, that (i) the CUSTOMER is duly authorised to provide such personal data to SWC and does so lawfully in compliance with relevant legislation; (ii) SWC can use such data for the purposes of performing its obligations; and (iii) SWC may disclose such personal data to any of its subcontractors for this purpose and may transfer such data to countries outside of the country of origin.
The parties acknowledge and agree that they do not intend to create by these LICENSE TERMS AND CONDITIONS any form of partnership, agency or trust arrangement. No party has the authority to act for, or incur any obligation on behalf of, another party other than described in these LICENSE TERMS AND CONDITIONS.
The parties have no liability towards each other in the event of there being circumstances of force majeure that have an impact on these LICENSE TERMS AND CONDITIONS. In this context, instances of force majeure are regarded as being war and military mobilization, natural disasters, strikes, lockouts, fire, overdue, delayed or deficient deliveries from sub-contractors, damage to production equipment, computer viruses, loss of Internet connectivity (both local and regional), unfitness for work of key personnel, import and export regulations and other circumstances beyond the control of the affected party. Where force majeure as described prevents the performance of the parties’ obligations in whole or in part for a period of more than 3 (three) months, SWC is entitled to cancel these LICENSE TERMS AND CONDITIONS, either in whole or in part, without any contingent compensation liability. Under these circumstances, SWC and the CUSTOMER keep what they have received from the other party and the CUSTOMER shall pay for the PROGRAM that has been delivered but not paid for by the date of cancellation. No further claims shall exist between the parties.
The license runs for 12 (twelve) months from the date of invoice and is extended automatically by 12 (twelve) months unless the CUSTOMER gives notice of its intention to end these LICENSE TERMS AND CONDITIONS to SWC and the PARTNER in writing 3 (three) months prior to the end of a 12 (twelve) month period. These LICENSE TERMS AND CONDITIONS may, after the end of the first period, be terminated by SWC with 3 (three) months’ written notice to the end of a month.
If the CUSTOMER breaches these LICENSE TERMS AND CONDITIONS, including exceeding the usage limitations licensed by the CUSTOMER, the CUSTOMER shall lose all rights pursuant to these LICENSE TERMS AND CONDITIONS, including license rights, with immediate effect and will be obliged to return the PROGRAM, including any back-up copies and associated documentation, without any recourse to refund. In addition, SWC may demand compensation in accordance with the general regulations incumbent in Danish law in respect of the consequential losses SWC may suffer as a result of such a breach. A breach does not constitute the waiving of the requirement to make payments in accordance with payment agreements entered into.
If you have received Trial Software, regardless of how labelled, the license to use the Trial Software is limited in time for a period of 21 days from the date of delivery (the “Trial Period”):
The terms of these LICENSE TERMS AND CONDITIONS will also apply to the CUSTOMER’s use of Trial Software, however the following different terms apply to the Trial Software:
• SWC grants the CUSTOMER a limited, non-exclusive license to use the Trial Software for the sole purpose of evaluating the Trial Soft-ware’s suitability for the CUSTOMER’s internal business requirements. The license granted is limited in time to the Trial Period.
• Upon notice to the CUSTOMER, SWC can terminate this license to the Trial Software with immediate effect at any time.
• The license to the Trial Software will automatically terminate without notice at the expiration of the Trial Period or at the CUSTOMER’s completion of his evaluation of the Trial Software, which ever of the two events occurs first.
• Parts of the full version of the Licensed Software may be withheld or unusable to the CUSTOMER for as long as the License operates the Trial Software.
• Trial Software is provided AS IS without any warranties or liabilities.
The CUSTOMER agrees that the Licensed Software will not be exported, reexported or transferred in violation of U.S. law or used for any purpose connected with chemical, biological or nuclear weapons or missile applications, nor be transferred or resold, if the CUSTOMER has knowledge or reason to know that the Licensed Software is intended or likely to be used for such purpose.
These LICENSE TERMS AND CONDITIONS are subject to Danish law and its general regulations in respect of the parties’ mutual circumstances. Copenhagen is agreed as the venue for all disputes arising from these terms and conditions. Disputes shall be resolved through mediation. The parties shall jointly appoint a mediator or allow one to be recommended by a recognized institution. Where a dispute remains unresolved following negotiation or mediation running over 6 (six) weeks from the date the dispute arose, either party may request that it be resolved by the Danish Institute of Arbitration in accordance with the applicable rules of the Danish Institute of Arbitration. The party requesting arbitration shall notify the counterparty of this in writing by registered post. The arbitration shall consist of 3 arbitrators.
The invalidity or unenforceability of any term or any part of any term of, or any right arising pursuant to, these LICENSE TERMS AND CONDITIONS shall not affect the validity or enforceability of any other terms or rights or the remainder of any such term or right which shall continue in full force and effect except for any such invalid or unenforceable provision or part thereof.
These LICENSE TERMS AND CONDITIONS, together with the agreements and other documents referred to in, or executed contemporaneously with, these LICENSE TERMS AND CONDITIONS, constitute the entire agreement and supersede any previous agreements between the Parties relating to its subject matter. Any warranties, representations, conditions or terms, statutory or otherwise which are not contained or referred to in this Agreement, are hereby excluded.
Each Party acknowledges and agrees that no representations or warranties were made which are not set out in this Agreement but that, if any were made, it has not relied on, or been induced to enter into this Agreement by, any information, statements, warranties or representations of any description, whether written or oral, made, supplied or given by or on behalf of the other Party in relation to the subject matter of these LICENSE TERMS AND CONDITIONS or otherwise.