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By clicking "accept agreement" when you first install the Software, you agree to be bound by the provisions of this EULA.
If you do not agree to be bound by the provisions of this EULA, you must click "re-ject agreement" during the installation process and promptly return the Software (on the media upon which the Software was provided) to your supplier.
1 DEFINITIONS
1.1 In this EULA, except to the extent expressly provided otherwise:
1.1.1 "Charges" means those amounts that the parties have agreed shall be payable by the User to the Licensor in respect of this EULA;
1.1.2 “Distributor” means the party who has been engaged by the Licensor in the sale and distribution of the Software, including, if agreed with the User, deliver Support Services to the User.
1.1.3 "Effective Date" means the date upon which the User gives the User's express consent to this EULA, following the issue of this EULA by the Licensor;
1.1.4 "EULA" means this end user license agreement, including any amendments to this end user license agreement from time to time;
1.1.5 "Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (which may include failures of the internet or any public telecommunications network, hacker attacks, de-nial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, epidemics, pandemics, explosions, fires, floods, riots, terrorist at-tacks and wars);
1.1.6 "Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "in-tellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
1.1.7 "Licensor" means Unicontrol ApS, a company incorporated in Denmark, regis-tration 40101578 having its registered office at Unsbjergvej 4C, 5220 Odense SØ, Denmark;
1.1.8 "Licensor Indemnity Event" has the meaning given to it in Clause 13.1;
1.1.9 "Maintenance Services" means the application to the Software of Updates and Upgrades;
1.1.10 "Software" means software applications on tablet, mobile or any other com-puter/controller/device or cloud services; The Software can be delivered as a “Perpetual” license or “Subscription on demand” license.
1.1.11 "Software Defect" means a defect, error or bug in the Software having a mate-rial adverse effect on the appearance, operation, functionality or performance of the Software, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the User or any person authorised by the User to use the Software;
(b) any use of the Software contrary to the Documentation by the User or any person authorised by the User to use the Software;
(c) a failure of the User to perform or observe any of its obligations in this EU-LA; and/or
1.1.12 "Source Code" means the Software code in human-readable form or any part of the Software code in human-readable form, including code compiled to create the Software or decompiled from the Software, but excluding interpreted code comprised in the Software;
1.1.13 "Support Services" means support in relation to the use of the Software (if) agreed with the Distributor;
1.1.14 "Term" means the term of this EULA, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
1.1.15 "Update" means a hotfix, patch or minor version update to the Software;
1.1.16 "Upgrade" means a major version upgrade of the Software;
1.1.17 "User" means the person to whom the Licensor grants a right to use the Soft-ware under this EULA; and
1.1.18 "User Indemnity Event" has the meaning given to it in Clause 13.
2 TERM
2.1 This EULA shall come into force upon the Effective Date.
2.2 This EULA shall continue in force until terminated in accordance with clause 15.
3 LICENSE
3.1 The Licensor hereby grants to the User from the date of supply of the Software to the User until the end of the Term a worldwide, non-exclusive license to:
(a) install a single instance of the Software;
(b) use a single instance of the Software.
3.2 The User may not sub-license and must not purport to sub-license any rights granted under Clause 3.1 without the prior written consent of the Licensor.
4 SOURCE CODE
4.1 Nothing in this EULA shall give to the User or any other person any right to ac-cess or use the Source Code or constitute any license of the Source Code.
5 SOFTWARE VERSION AND MAINTENANCE SERVICES
5.1 If the User has agreed on buying a Perpetual license, the User will receive the latest Software version at the time of accepting the EULA. The Perpetual li-cense does not include Maintenance Service.
5.2 If the User has agreed on buying af Subscription on demand license, the Licen-sor will provide the Maintenance Services to the User during the Term.
5.3 The Licensor shall provide the Maintenance Services with reasonable skill and care.
5.4 The Licensor may suspend the provision of the Maintenance Services if any amount due to be paid by the User to the Licensor under this EULA is overdue.
5.5 The Licensor may terminate the Maintenance Services by giving the User at least 30 days' notice expiring.
5.6 If the Maintenance Services are terminated in accordance with the provisions of this Clause 5, all other provisions of this EULA will continue notwithstanding such termination.
6 SUPPORT SERVICES
6.1 If agreed with the Distributor, the Distributor shall provide the Support Ser-vices to the User during the Term.
6.2 The Licensor is in no way responsible for the Support Services delivered by the Distributor.
7 NO ASSIGNMENT OF INTERLELECTUAL PROPERTY RIGHTS
7.1 Nothing in this EULA shall operate to assign or transfer any Intellectual Proper-ty Rights from the Licensor to the User, or from the User to the Licensor.
8 CHARGES
8.1 The User shall pay the Charges to the Licensor in accordance with this EULA.
8.2 All amounts stated in or in relation to this EULA are, unless the context re-quires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the User to the Licensor.
9 PAYMENTS
9.1 The Licensor shall issue invoices for the Charges to the User.
9.2 The User must pay the Charges to the Licensor in advance.
9.3 The User must pay the Charges by debit card, credit card, direct debit or bank transfer (using such payment details as are notified by the Licensor to the User from time to time).
9.4 If the User does not pay any amount properly due to the Licensor under this EULA, the Licensor may charge the User interest on the overdue amount at the rate of 8% per annum above the Bank of Denmark base rate from time to time (which interest will accrue daily until the date of actual payment and be com-pounded at the end of each calendar month)
10 DISTRIBUTOR AS DESIGNATED PAYEE
10.1 The Licensor can decide that the Distributor shall be the designated payee. Payment will be made to the Distributor in accordance with clause 9.
10.2 If the User does not pay any amount under this EULA to the Distributor, if des-ignated payee, it will be categorized as a breach of this EULA.
11 WARRANTIES
11.1 The Licensor warrants to the User that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.
11.2 If the Licensor reasonably determines, or any third party alleges, that the use of the Software by the User in accordance with this EULA infringes any person's Intellectual Property Rights, the Licensor may acting reasonably at its own cost and expense:
(a) modify the Software in such a way that it no longer infringes the relevant Intellectual Property Rights, providing that any such modification must not introduce any Software Defects into the Software and must not result in the Software failing to conform with the Software Specification; or
(b) procure for the User the right to use the Software in accordance with this EULA.
11.3 The User warrants to the Licensor that it has the legal right and authority to enter into this EULA and to perform its obligations under this EULA.
11.4 All of the parties' warranties and representations in respect of the subject mat-ter of this EULA are expressly set out in this EULA. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this EULA will be implied into this EULA or any related contract.
12 ACKNOWLEDGEMENTS AND WARRANTY LIMITATIONS
12.1 The User acknowledges that complex software is never wholly free from de-fects, errors and bugs; and subject to the other provisions of this EULA, the Li-censor gives no warranty or representation that the Software will be wholly free from defects, errors and bugs.
12.2 The User acknowledges that complex software is never entirely free from secu-rity vulnerabilities; and subject to the other provisions of this EULA, the Licen-sor gives no warranty or representation that the Software will be entirely se-cure.
12.3 The User acknowledges that the Software is only designed to be compatible with that software specified as compatible in the Software Specification; and the Licensor does not warrant or represent that the Software will be compati-ble with any other software.
12.4 The User acknowledges that the Licensor will not provide any legal, financial, accountancy or taxation advice under this EULA or in relation to the Software; and, except to the extent expressly provided otherwise in this EULA, the Licen-sor does not warrant or represent that the Software or the use of the Software by the User will not give rise to any legal liability on the part of the User or any other person.
13 INDEMNITIES
13.1 The Licensor shall indemnify and shall keep indemnified the User against any and all liabilities arising directly as a result of any breach by the Licensor of any third party's Intellectual Property Rights, any applicable law, or any provi-sion of this EULA (a "Licensor Indemnity Event").
13.2 The User must:
(a) upon becoming aware of an actual or potential Licensor Indemnity Event, notify the Licensor;
(b) provide to the Licensor all such assistance as may be reasonably requested by the Licensor in relation to the Licensor Indemnity Event;
(c) allow the Licensor the exclusive conduct of all disputes, proceedings, nego-tiations and settlements with third parties relating to the Licensor Indemni-ty Event; and
(d) not admit liability to any third party in connection with the Licensor Indem-nity Event or settle any disputes or proceedings involving a third party and relating to the Licensor Indemnity Event without the prior written consent of the Licensor,
The Licensor's obligation to indemnify the User under Clause 13.1 shall not ap-ply unless the User complies with the requirements of this Clause 13.2.
14 LIMITATIONS AND EXCLUSIONS OF LIABILITY
14.1 The Licensor will not be liable to the User in respect of any losses arising out of a Force Majeure Event.
14.2 The Licensor will not be liable to the User in respect of any loss of profits or an-ticipated savings.
14.3 The Licensor will not be liable to the User in respect of any loss of revenue or income.
14.4 The Licensor will not be liable to the User in respect of any loss of business, contracts or opportunities.
14.5 The Licensor will not be liable to the User in respect of any loss or corruption of any data, database or software.
14.6 The Licensor will not be liable to the User in respect of any special, indirect or consequential loss or damage.
14.7 The liability of the Licensor to the User under this EULA in respect of any event or series of related events shall not exceed the greater of:
(a) EURO 10,000.00; and
(b) the total amount paid and payable by the User to the Licensor under this EULA shall be the price of the perpetual license or if subscription on de-mand license, the 12-month period preceding the commencement of the event or events if .
14.8 The aggregate liability of the Licensor to the User under this EULA shall not ex-ceed the greater of:
(a) EURO 25,000.00; and
(b) the total amount paid and payable by the User to the Licensor under this EULA.
15 TERMINATION
15.1 If the User has bought a Perpetual license, the User can use the Software indef-initely.
15.2 If the User has bought a Subscription on demand license, the following terms apply;
15.2.1 the Licensor may terminate this EULA by giving to the User not less than 30 days' written notice of termination, expiring at the end of any calendar month after the end of the Minimum Term.
15.2.2 The User may terminate this EULA by giving to the Licensor not less than 30 days' written notice of termination, expiring at the end of any calendar month after the end of the Minimum Term.
15.2.3 Either party may terminate this EULA immediately by giving written notice of termination to the other party if:
(a) the other party commits any breach of this EULA, and the breach is not re-mediable;
(b) the other party commits a breach of this EULA, and the breach is remedia-ble but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
(c) the other party persistently breaches this EULA (irrespective of whether such breaches collectively constitute a material breach).
15.2.4 Subject to applicable law, either party may terminate this EULA immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(d) if that other party is an individual:
(i) that other party becomes incapable of managing his or her own af-fairs as a result of illness or incapacity; or
(ii) that other party is the subject of a bankruptcy petition or order,
and if that other party dies then this EULA shall automatically terminate.
15.2.5 The Licensor may terminate this EULA immediately by giving written notice to the User if any amount due to be paid by the User to the Licensor under this EULA is unpaid by the due date.
16 EFFEKT OF TERMINATION
16.1 Upon the termination of this EULA, all of the provisions of this EULA shall cease to have effect, save that the following provisions of this EULA shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 9, 11, 12, 13, 14, and 17.
16.2 Except to the extent expressly provided otherwise in this EULA, the termination of this EULA shall not affect the accrued rights of either party.
16.3 Within 30 days following the termination of this EULA for any reason:
(a) the User must pay to the Licensor any Charges in respect of Services pro-vided to the User before the termination of this EULA and in respect of li-cences in effect before the termination of this EULA; and
(b) the Licensor must refund to the User any Charges paid by the User to the Licensor in respect of Services that were to be (but are not) provided to the User after the termination of this EULA and in respect of licences that were to be (but are not) in effect after the termination of this EULA,
without prejudice to the parties' other legal rights.
16.4 For the avoidance of doubt, the licenses of the Software in this EULA shall ter-minate upon the termination of this EULA; and, accordingly, the User must im-mediately cease to use the Software upon the termination of this EULA.
16.5 Within 10 Business Days following the termination of this EULA, the User must:
(a) return to the Licensor or dispose of as the Licensor may instruct all media in its possession or control containing the Software; and
(b) irrevocably delete from all computer systems in its possession or control all copies of the Software.
17 GENERAL
17.1 No breach of any provision of this EULA shall be waived except with the express written consent of the party not in breach.
17.2 If any provision of this EULA is determined by any court or other competent au-thority to be unlawful and/or unenforceable, the other provisions of this EULA will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
17.3 This EULA may not be varied except by a written document signed by or on be-half of each of the parties.
17.4 The User hereby agrees that the Licensor may assign the Licensor's contractual rights and obligations under this EULA to any third party. Save to the extent expressly permitted by applicable law, the User must not without the prior writ-ten consent of the Licensor assign, transfer or otherwise deal with any of the User's contractual rights or obligations under this EULA.
17.5 This EULA is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this EULA are not subject to the consent of any third party.
17.6 This EULA shall constitute the entire agreement between the parties in rela-tion to the subject matter of this EULA, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
17.7 This EULA shall be governed by and construed in accordance with the laws in Denmark
17.8 Any dispute which may arise in connection with this EULA shall be governed by the rules for processing of cases by the Danish Institute of arbitration (Copen-hagen Arbitration). The language shall be Danish.
17.9 Each Party shall appoint an arbitrator, while the President of the arbitral tribu-nal shall be appointed by the Institute. If a party does not within 10 days after having submitted or received notification of the request for arbitration has ap-pointed an arbitrator, this arbitrator shall be appointed by the Institute in ac-cordance with the above rules.
