GENERAL TERMS & CONDITIONS
The following General Terms and Conditions (GTC) apply to all software transfer agreements, licensing agreements and agreements on the purchase of services, support and maintenance programs (usually in combination with software) between ASENSUS or an affiliated company (“ASENSUS”) and the Customer.
This GBC applies once the Customer processes and confirms orders with ASENSUS and/or the ASENSUS Online Store, leaving the check box in the order process with a check in it. The Customer agrees to abide by all terms, conditions and requirements set forth herein.
The GTC replaces any existing and previous agreement between ASENSUS and the Customer.
"Confidential Information" means the confidential and/or proprietary information of ASENSUS (whether such information is or is not marked or identified as confidential or proprietary), including software (in object and source code form), inventions (whether or not patentable), trade secrets, ideas, know-how, techniques, processes, formulas, algorithms, schematics, research, development, software design and architecture, testing procedures, design and functional specifications, problem reports and performance information, marketing and financial plans and data. "Confidential Information" does not include information is known by or in the possession of Customer prior to its receipt from ASENSUS; or (c) is lawfully obtained from a third party who rightfully possesses the information (without confidentiality or proprietary restriction) and who did not receive it, directly or indirectly, from ASENSUS.
"Documentation" means ASENSUS’ standard end user documentation for the Software, as modified from time to time by ASENSUS in its sole discretion.
"Customer" means an end-user licensee of the Software who acquires such software for business end use and not for resale or distribution.
"End User License Agreement" means ASENSUS’ standard end-user license agreement for the Licensed Software, as modified from time to time by ASENSUS in its sole discretion, the current version of which is located at an ASENSUS website.
"Intellectual Property Rights" means all present and future copyrights, trademark rights, service mark rights, trade secret rights, patent rights, moral rights, and other intellectual property and proprietary rights recognized in any jurisdiction.
"Software" means the licensed software(s) made available to Customer by ASENSUS under this Agreement, in English.
"Product" means a single copy of the Software in object code format and/or other items as determined by ASENSUS in its sole discretion.
#Restrictions on Use. Customer shall not (i) modify, adapt, alter, translate, copy, perform and display (publicly or otherwise) or create derivative works based on the Software; (ii) merge or bundle the Software with other thirds party software; (iii) sublicense, lease, rent or loan the Software; (iv) transfer the Software to any third party; (v) provide the use of the Software in any service bureau, rental or time-sharing arrangement; (vi) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Software; or (vii) remove, modify or obscure any identification or proprietary or restrictive rights markings or notices from the Product or any component thereof.
#Restrictions on Distribution.
(ii) Customer shall not distribute the Product or any portion thereof to any party, including any dealers, agents, representatives, distributors, original equipment manufacturers, value added resellers, systems integrators or other third parties, other than Customer itself, and shall not authorize or appoint any dealers, agents, representatives, sub-distributors, original equipment manufacturers, value added resellers, systems integrators or other third parties to distribute or sublicense the Software.
(iii) No Sale. Any references to "sale(s)," "resale(s)," "selling" or "reselling" of the Product in this Agreement refer only to the sale and transfer of title of the Software and no title to the Software is transferred.
#IP Ownership. ASENSUS owns all right, title and interest, including all Intellectual Property Rights, in and to the Software, End User License Agreement (EULA), Documentation and other items contained within the Product ("ASENSUS Items"). All rights in and to the ASENSUS Items not expressly granted to Customer under this Agreement are reserved by ASENSUS. Customer shall not remove, alter, or obscure any proprietary notices (including copyright notices) of ASENSUS or the End User License Agreement included in or with the Software. Customer shall take all reasonable measures to protect ASENSUS’ Intellectual Property Rights in the Software.
Customer shall hereafter refrain from challenging in any court or judicial or administrative authority (including any patent office or authority) ASENSUS’ rights or ownership of the ASENSUS Items.
#End User Support. ASENSUS supplies Customers granted licenses to use ASENSUS software with proper technical support services via the Internet and as is reasonably required in the respect of the ASENSUS software such as technical assistance, correction of problems and errors.
#To order products, software and services from ASENSUS (or affiliated SMARTtsm.com) online shop, the Customer finds the products, software and services in the Online Store and place them in the "Online Cart". The cart contains a list of all the products and/or services the customer has selected for purchase. Selection can be changed in quantity or completely removed from the cart.
#Once the cart contains all the products and/or services required in the necessary quantities and configuration, the order transaction can be continued by pressing the Check-out button. Subsequently, the customer shall be asked for his company’s address, contact name and e-mail address and preferred payment method. Prior to placing the final order, all the details of the order are displayed in summary and can be modified by the customer if required.
#When paying per credit card and PayPal, the Customer agrees that ASENSUS can charge the credit card company, directly or via online banking channels.The order becomes binding once the customer feeds the payment data directly to ASENSUS, to PayPal, or sends the order as a Purchase Order or Order with payment per Bank Transfer. The Customer receives confirmation via e-mail if the purchase order is successfully transmitted. The purchase order confirmation can be printed out.
ORDER VALIDATION AND CONFORMATION
#The products, services and software delivered in any way, remain the property of ASENSUS until full payment has been made to ASENSUS. Once payment has been confirmed by ASENSUS, the order is approved and ASENSUS communicates the product/services/license keys within two calendar weeks per mail and forward order acceptance by confirming it to the Customer’s contact person’s email. Consequently, the Customer can download the software from ASENSUS once it has been paid for. The Customer carries the obligation to retrieve the software and/or services. The Customer decides whether and when to retrieve/download the software or service.
Any maintenance contract period commences from the date of license key issue, promptly forwarded to Customer in Order Confirmation email.
#The order and all data relating to the Customer are stored electronically by ASENSUS.
#If payment fails, or the bank account is closed or barred without Customer providing details of another form of payment to ASENSUS, ASENSUS has the right to bar the customer account, cancel associated licenses and any outstanding orders.
#On ASENSUS’ discretion, ASENSUS can reject any order for any reason without prior consent or approval by the Customer. If ASENSUS has received credit card payment or bank transfer related to the order cancelled by ASENSUS, ASENSUS will return payment.
CUSTOMER SHOP ACCOUNT
#During order processing in the Online Store, after the customer feed business name, address and contact e-mail, ASENSUS sets up a customer account for transacting and paying for the current order as well for any recurring/future online orders. A user ID and password is e-mailed to the Customer on the contact e-mail supplied during the order process. This information serves to identify and authorize the customer and may only be used by the customer himself. The customer is obliged to handle the information with confidentiality and protect it from third-party access. The information can be requested changed on Customer’s discretion via ASENSUS’ web contact forms.
#If Customer is aware of unauthorised parties have access to this data, Customer must inform ASENSUS immediately for the Customer account to be suspended until further notice.
The annual maintenance period as purchased during the order process, commences on the day of the purchase of the license. When subscribing to Maintenance, the Customer has access to download and install minor updates, patches and bug fixes as released by ASENSUS on http://www.asensus.com/
or an ASENSUS affiliated site. ASENSUS shall on a best-effort basis announce update patches. Read full maintenance program details on ASENSUS website.
RIGHT TO CHANGE.
ASENSUS, in its sole discretion, has the right to add, delete, modify and otherwise make changes to the Software offered under these Terms & Conditions, to change the license fees and Maintenance fee and to make other changes to the GBC (collectively, "Changes") effective immediately after available on the website.
In addition, ASENSUS is entitled, without notification, yearly to adjust the coming-year invoice amount(s) according to the increase in the European Union harmonized consumer price index.
ASENSUS only sells its products and services to businesses. The Customer shall pay, and shall indemnify and hold ASENSUS harmless from and against, all taxes, duties and levies directly imposed by all foreign, federal, state, local or other taxing authorities (including, without limitation, export, sales, use, excise, and valued-added taxes) based on the transactions or payments under this Agreement.
DISCLAIMER OF WARRANTY; LIMITATIONS OF LIABILITY
ASENSUS MAKES NO WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO THE SOFTWARE, ANY GENERATED DATA, OR DOCUMENTATION, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY OR THAT THE SOFTWARE, DATA GENERATED FROM THE USE OF THE SOFTWARE (“GENERATED DATA”) OR DOCUMENTATION IS NON-INFRINGING. ALL WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ASENSUS MAKES NO WARRANTIES THAT THE SOFTWARE, THE GENERATED DATA OR DOCUMENTATION WILL MEET CUSTOMER’S REQUIREMENTS THAT OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE OR WILL CONFORM EXACTLY TO THE DOCUMENTATION.
THE CUSTOMER ACKNOWLEDGE THAT RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SOFTWARE MAY NOT BE EFFECTIVE, ACCURATE OR RELIABLE, THAT THE SOFTWARE MAY CONTAIN BUGS, ERRORS, OMISSIONS, VIRUSES, OR OTHER PROBLEMS AND MAY CAUSE SYSTEM FAILURE. IN PARTICULAR, THE CUSTOMER IS AWARE THAT THE SOFTWARE CANNOT IN ITSELF ENSURE THAT BACK UP’S ARE CORRECT AND ERROR FREE AND THAT CUSTOMER SHOULD EMPLOY ADDITIONAL CONTROL MEASURES TO ENSURE CONTROL OF BACK UP QUALITY, CORRECTNESS AND RECOVERABILITY.
THE CUSTOMER AGREES THAT THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THIS SOFTWARE, THE GENERATED DATA, OR DOCUMENTATION AND ANY SUPPORT SERVICES THEREFORE REMAINS WITH THE CUSTOMER. THE CUSTOMER AGREES TO USE THE SOFTWARE, THE GENERATED DATA, AND ANY DOCUMENTATION SOLELY AT CUSTOMER’S OWN RISK, WITHOUT RECOURSE TO ASENSUS.
IN NO EVENT SHALL ASENSUS BE RESPONSIBLE OR LIABLE, WHETHER IN CONTRACT, TORT, WARRANTY OR UNDER ANY STATUTE OR ON ANY OTHER BASIS FOR SPECIAL, INDIRECT, INCIDENTAL, MULTIPLE, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE POSSESSION OR USE OF, OR THE INABILITY TO USE, THE SOFTWARE, THE GENERATED DATA, BACK UP’S OR DOCUMENTATION, EVEN IF ASENSUS IS ADVISED IN ADVANCE OF
THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES ARISING FROM OR RELATED TO LOSS OF USE, LOSS OF DATA, DOWNTIME, OR FOR LOSS OF REVENUE, PROFITS, GOODWILL OR BUSINESS OR OTHER FINANCIAL LOSS. IN ANY CASE, THE ENTIRE LIABILITY OF ASENSUS UNDER THIS LICENSE, OR ARISING OUT OF THE USE OF THE SOFTWARE OR DOCUMENTATION OR GENERATED DATA OR BACK UP’S, SHALL NOT EXCEED IN THE AGGREGATE 50% OF THE LICENSE FEE PAID BY THE CUSTOMER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT CAUSING THE CLAIM.
THE CUSTOMER ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS LICENSE HAVE BEEN TAKEN INTO ACCOUNT IN CONNECTION WITH CUSTOMER’S DECISION TO ACCEPT THIS LICENSE AGREEMENT AND WHEN ASSESSING WHETHER TO USE THE SOFTWARE.
SOME COUNTRIES, JURISDICTIONS OR STATES MAY LIMIT THE SCOPE OF OR PRECLUDE LIMITATIONS OR EXCLUSION OF REMEDIES OR DAMAGES, OR OF LIABILITY, SUCH AS LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AS OR TO THE EXTENT SET FORTH ABOVE, OR DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED. IN SUCH COUNTRIES, JURISDICTIONS AND STATES, THE LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DAMAGES OR LIABILITY SET FORTH ABOVE MAY NOT APPLY TO THE CUSTOMER. HOWEVER, ALTHOUGH THEY SHALL NOT APPLY TO THE EXTENT EXPRESSLY PROHIBITED BY LAW, THEY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT VARY BY STATE, COUNTRY OR OTHER JURISDICTION.
THIRD PARTY SOFTWARE
Customer acknowledges that ASENSUS does not give any warranties (and expressly disclaims any and all warranties), express or implied, grant any license or right or give a covenant not to sue, or grant any other rights, including Intellectual Property Rights with respect to any Third Party Software included within the Product and/or Software. Notwithstanding anything to the contrary in this GBC, this GBC does not and shall not be interpreted or construed to include any representation or warranty that the Third Party Software, or the use thereof, whether alone or in combination with other hardware, software, apparatuses, or methods, is or will be free from infringement of any Intellectual Property Rights or other rights of third parties. ASENSUS disclaims any and all liability arising from the use of such Third Party Software, including claims of infringement of third party Intellectual Property Rights or other rights arising out of or relating to such Third Party Software.
The GBC are binding once the Customer leaves the check box in the order process with a check in it.
COMPLIANCE WITH LAWS
Customer agrees that it will not export or re-export the Product in any form.
Danish Law governs this Agreement without regard to international private Law regulations or principles of Danish Law leading to the application of other laws than substantive Danish Law. Any dispute that cannot be solved amicably shall be solved by the ordinary Danish courts and the Parties hereby irrevocably submit to the Court of Copenhagen as the only lawful venue in the first instance for any legal dispute. Notwithstanding the foregoing, ASENSUS shall be entitled to initiate a case against the Customer before any competent court.
The GBC and its conditions can not be assigned, in whole or in part, by Customer.
Any delay in the performance of any duties or obligations of either party (except the payment of money) will not be considered a breach if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, war, act of terrorism, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
PUBLICITY; PRESS RELEASES
ASENSUS shall be permitted to use the name of the Customer in publicity releases, advertising, or similar activities without the prior written consent of Customer.